Restrepo v. State

5 Citing cases

  1. People v. Weber

    2023 N.Y. Slip Op. 3301 (N.Y. 2023)   Cited 1 times

    Of course, courts in all other kinds of civil cases may refuse to adjudicate alternative claims as well (see e.g., Nostram v A.W. Chesterton Co., 15 N.Y.3d 502, 509 [2010]; Wittlinger v Wing, 99 N.Y.2d 425, 433 [2003]; Restrepo v State, 179 A.D.2d 804, 804 [2d Dept 1992]; Effective Communications West, Inc. v Board of Co-op. Educ. Servs. of Sole Supervisory Dist. of Cattaraugus, Erie and Wyoming Counties, 57 A.D.2d 485, 491 [4th Dept 1977])

  2. People v. Weber

    40 N.Y.3d 206 (N.Y. 2023)

    Of course, courts in all other kinds of civil cases may refuse to adjudicate alternative claims as well (see e.g.,Nostrom v. A.W. Chesterton Co., 15 N.Y.3d 502, 509, 914 N.Y.S.2d 725, 940 N.E.2d 551 [2010] ; Wittlinger v. Wing, 99 N.Y.2d 425, 433, 757 N.Y.S.2d 234, 786 N.E.2d 1270 [2003] ; Restrepo v. State, 179 A.D.2d 804, 804, 580 N.Y.S.2d 874 [2d Dept. 1992] ; Effective Communications West, Inc. v. Board of Co-op. Educ. Servs. of Sole Supervisory Dist. of Cattaraugus, Erie and Wyoming Counties, 57 A.D.2d 485, 491, 395 N.Y.S.2d 296 [4th Dept. 1977] ). On the other hand, civil courts—including SORA courts—often make alternate holdings to avoid inefficient remands (see e.g.,People v. Shaw, 204 A.D.3d 617, 617, 165 N.Y.S.3d 311 [1st Dept. 2022] ; U.S. Bank National Association v. Gordon, 158 A.D.3d 832, 837, 72 N.Y.S.3d 156 [2d Dept. 2018] ; People v. Varin, 158 A.D.3d 1311, 1311, 68 N.Y.S.3d 359 [4th Dept. 2018], lv denied 31 N.Y.3d 905, 2018 WL 2014637 [2018] ; Havens, 144 A.D.3d at 1633, 42 N.Y.S.3d 708 ).

  3. Fackler v. Genetzky

    257 Neb. 130 (Neb. 1999)   Cited 27 times
    Denying recovery for emotional damages for death of animal

    Barney v. Pinkham, 29 Neb. 350, 45 N.W. 694 (1890). This is the rule in other jurisdictions as well. See, e.g., Price v. Brown, 545 Pa. 216, 680 A.2d 1149 (1996); Downing v. Gully, 915 S.W.2d 181 (Tex. App. 1996); Restrepo v. State, 146 Misc.2d 349, 550 N.Y.S.2d 536 (1989), aff'd 179 A.D.2d 804, 580 N.Y.S.2d 874 (1992); Turner v. Sinha, 65 Ohio App.3d 30, 582 N.E.2d 1018 (1989); Bartlett v. MacRae, 54 Or. App. 516, 635 P.2d 666 (1981). As stated by the Supreme Court of Pennsylvania,

  4. Kim v. Zawie

    66 Misc. 3d 137 (N.Y. App. Term 2020)

    Generally, in a malpractice action, expert opinion is necessary to establish the applicable standard of care, as well as a deviation from such standard, which resulted in injury, unless the matter is one within the experience and observation of the average layperson (see generally530 E. 89 Corp. v. Unger , 43 NY2d 776 [1977] ; Macey v. Hassam , 97 AD2d 919 [1983] ). While expert opinion may be dispensed with in veterinary malpractice actions "where the very nature of the acts complained of bespeaks improper treatment and malpractice" ( Mathew v. Jerome L. Klinger, D.V.M., P.C. , 179 Misc 2d 609, 610 [App Term, 2d Dept, 9th & 10th Jud Dists 1998] [internal quotation marks omitted]; see alsoMatter of Restrepo v. State of New York , 146 Misc 2d 349, 355 [Ct Cl 1989], affd 179 AD2d 804 [1992] ), this is not such an action. Here, the moving papers included an affidavit by an expert which made a prima facie showing of a lack of malpractice on the part of any of the defendants.

  5. DeCurtis-Slifkin v. Kolbert

    248 A.D.2d 428 (N.Y. App. Div. 1998)   Cited 1 times

    The defendant established his prima facie entitlement to summary judgment based on the affidavit of an expert that the treatment of the plaintiffs' dog was consistent with accepted veterinary practice and that the effects of the anesthesia would have sufficiently dissipated to permit discharge of the dog to his owners. The plaintiffs' conclusory allegations of malpractice, unsupported by competent evidence tending to establish the essential elements of their claim, were insufficient to defeat the defendant's motion (cf., Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324-325; Kramer v. Rosenthal, 224 A.D.2d 392; see generally, Annotation, Veterinary Malpractice, 71 ALR 4th 811, 821- 822; compare, Matter of Restrepo v. State of New York, 146 Misc.2d 349, affd 179 A.D.2d 804). Accordingly, the defendant's motion for summary judgment should have been granted. Thompson, J. P., Pizzuto, Joy and Altman, JJ., concur.