...Supreme Court of the State of New York Appellate Division: Second Judicial Department D28449 H/prt Argued - October 2, 2009 AD3d REINALDO E. RIVERA, J.P. RANDALL T. ENG CHERYL E. CHAMBERS L. PRISCILLA HALL, JJ. 2008-04626 Emigrant Mortgage Company, Inc., respondent, v Gregory Karpinski, appellant. (Index No. 12722/07) DECISION & ORDER ON MOTION Motion by the plaintiff, Emigrant Mortgage Company, Inc., for leave to reargue an appeal from an order of the Supreme Court, Kings County, dated April 16, 2008, which was determined by decision and order of this Court dated November 24, 2009. Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is ORDERED that the motion is granted, and upon reargument, the decision and order of this Court dated November 24, 2009 (Emigrant Mortgage Company, Inc., v Karpinksi, 67 AD3d 958), is recalled and vacated, and the following decision and order is substituted therefor: Gregory Karpinski, Palm Coast, Florida, appellant pro se. Borchert, Genovesi, LaSpina & Landicino, P.C., Whitestone, N.Y. (Helmut Borchert and Mark J. Krueger of counsel), for respondent. In an action to foreclose a mortgage, the defendant, Gregory Karpinski, appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Saitta, J.), dated April 16, 2008, as granted those branches of the plaintiff's motion which were for summary judgment September 28, 2010 EMIGRANT MORTGAGE COMPANY, INC. v KARPINSKI Page...
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...Trial and Appellate Courts State and appellate courts work with each other but have very different roles in the justice system. State courts listen to facts about a case and try to keep the victims and the accused rights from being violated. Appellate courts make sure that the rights of the accused have not been violated. In the state courts system an accused has a right to a jury of peers. It is up to the state to prove burden of guilt while the accused does not have to prove they are innocent. They are already considered innocent until they are proven guilty. In the appellate court the one that starts the appeal is the one that must prove that wrong was done to them, so if the accused files an appeal they must prove that there was an injustice to their rights during the trial to get justice from the appeal courts. In state trials a prosecutor argues the facts as they see it to a judge and possibly a jury (depending on if it’s a trial jury or a bench trial). The defense also gets this right. Both parties get to introduce witnesses and evidence for or against the accused. In the appellate court there can be an oral argument, but most appellate courts only see paper arguments that have been filed by the one who feels that their rights were not considered. If an accused rights are violated, such as lack of legal representation. If there are errors during the trial, such as the defense not doing proper representation is a reason for an appeal...
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...Assuming a case is capable of being heard by the U.S. Supreme Court, the first step, most of the time, is to file a lawsuit in your local state or federal court. The trial judge would hear evidence and consider legal arguments from each side before making a decision. If the judge decides all or part of the case against you, you can then appeal the case to a higher court. When you have appealed as far as possible, you can consider appealing to the U.S. Supreme Court. - The beginning process is to file a notice of appeal, rarely does a losing party have an automatic right of appeal. Usually there must be a legal basis for the appeal, an alleged material error in a trial, not just the fact that the losing party did not like the verdict. This filing marks the beginning of a time period in which the appellant must file a brief, a written argument containing their side's view of the facts and the legal arguments upon which they rely in seeking a reversal of the lower trial court. The appellee then has a specified time to file an answering brief. The appellant may then file a second brief answering the appellee's brief. A United States appellant court sometimes will make their decision only on the basis of a written briefs. In a civil case, either party may appeal to a higher court. In a criminal case, only the defendant has a right to an appeal in most states. (Some states give the prosecution a limited right to appeal to determine certain points of law. These appeals usually occur...
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...No. 15-1972 IN THE SUPREME COURT OF THE UNITED STATES Spring Term, 2015 ________________________________ GEORGE E. SCHAEFER, III, in his official capacity as the Clerk of Court for Norfolk Circuit Court and JANET M. RAINEY, in her official capacity as State Registrar of Vital Records, Petitioners, MICHÈLE MCQUIGG, Intervenor/Petitioner, v. TIMOTHY B. BOSTIC; TONY C. LONDON; CAROL SCHALL; and MARY TOWNLEY, Respondents. ________________________________ ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ________________________________ BRIEF FOR THE RESPONDENTS ________________________________ Law Student Counsel for the Respondents QUESTION PRESENTED Whether Virginia’s Marriage Laws, which prohibit same-sex couples from marrying or entering a civil partnership in Virginia or in any other jurisdiction, violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment when: * Virginia’s constitution limits marriage to one man and one woman; * Virginia’s code prohibits same-sex marriages or civil unions; and * Virginia’s code refuses to recognize same-sex marriages or civil unions lawfully consummated in other jurisdictions. TABLE OF CONTENTS page QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF CONTENTS . . . . . . . . . . . . . . ...
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...times. While Charlie was lying on the ground, David stood over him and could see he was still breathing. David shot Charlie three times in the head, killing him instantly. Alan managed to get to the car and told Betty to "drive" and that "Charlie was shot." Soon thereafter, they were stopped and arrested for armed robbery, attempted robbery, and Murder. The two were held no bond pending the trial. The charges that are being looked during this case are conspiracy, homicide (first degree v. second degree) and felony murder. This case raises the question on whether or not the defendants have the rights to appeal. An appeal is a petition to a higher court by the losing party to overturn a court's ruling. “The basis of an appeal must be a reversible error in the application of the law at the trial court level based on the facts, the court clearly misapplied the law” (FindLaw, 2014). An appeal is only filed after a final judgment or order has...
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...despite having an undergraduate GPA of 3.8 and LSAT of 161. Barbara Grutter, who is white, challenges the admissions practices of the University of Michigan Law School. She claimed that she was being discriminated against on the basis of her race in violation of her Constitutional rights pursuant to the Equal Protection Clause of the Fourteenth Amendment. ISSUES: Does the fact that the University’s law school considers race and ethnicity when it decides which students to admit violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution or the Civil Rights Act of 1964? COURTS: Trial Court: U.S. District Court = YES; Judgment granted to the Plaintiff Appellate Courts: Court of Appeals: 6th Circuit Court = NO; Reversed the Trail Court decision, Judgment for the Defendant. Supreme Court: USSC = NO; Affirmed the Appellate Court, Judgment for the Defendant. PREVAILING PARTY: Bollinger and the University of Michigan Win REASONING: 1. Any time racial classifications are imposed by a governmental agency, they must be analyzed using a Strict Scrutiny standard. Such classifications will only pass constitutional muster if they are narrowly...
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...appeal to at least one level of appellate court (Meyer, J & Grant, D. 2003). An appeal is when a defendant has already been found guilty in court, and they decide to take it to a higher court in order to change the ruling (Meyer, J & Grant, D. 2003). Basically it is a process that takes place, because the defendant and their attorney do not feel that the verdict given was accurate; and that could be due to many different reasons. Appeals ensure that there was a fair trial given and no rights were violated (Meyer, J & Grant, D. 2003). The appeal process begins very shortly after the trial, when the defense sends an appeal to the court. Appeals factor in to the overall criminal justice process, because in the end they can change laws or amendments. The Miranda rights are a great example of this. They came about after someone went back and challenged the court. It was then that the Miranda rights became part of the law and the criminal justice process. Just because a criminal goes to court and is decided guilty and is charged with whatever he/she was being charged with, does not mean that the process is over and he/she accepts the sentence and it is done. The defendant may decide something went wrong or he/she has a way of proving their innocence. Then they will submit an appeal and may end up getting out of the original sentence given. This completely changes up the criminal procedures and processes. Based on my review of the appeal courts results in New Jersey. I think...
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...Inc……………………….. 5. Tsai v. Court of Appeals……………………………………………………………………. 6. Serg’s Products, Inc. v. PCI Leasing and Finance Inc. …………………………. 7. Lopez v. Orosa, Jr., and Plaza Theater, Inc…………………………………………. 8. Yap v. Tañada………………………………………………………………………………… 9. Machinery & Engineering Supplies, Inc. v. Court of Appeals………………. 10. Fels Energy, Inc. v. Province of Batangas………………………………………… B. Property in relation to whom it belongs 11. Laurel v. Garcia………………………………………………………………………………… 12. Rabuco v. Villegas……………………………………………………………………………… 13. Macasiano v. Diokno…………………………………………………………………………… 14. Republic v. Court of Appeals……………………………………………………………….. 15. Province of Zamboanga del Norte v. city of Zamboanga……………………….. 16. Chavez v. Public Estate Authority……………………………………………………….. 17. Chavez v. National Housing Authority………………………………………………… II. OWNERSHIP IN GENERAL A. Rights included in ownership 18. Javier v. Veridiano II 19. Bustos v. Court of Appeals 20. Heirs of Roman Soraino v. Court of Appeals 21. Garcia v. Court of appeals 22. Rodil Enterprises, inc. v. Court of Appeals 23. Isaguirre v. De lara B. Principles of Self-Help & state of Necessity 24. German Management & Services, Inc. v. Court of appeals 25. Caisip v. People 26. People v. Pletcha, Jr. C. Use injuring the right of third persons 27. Andamo vs Intermediate Appellate Court D. Surface rights...
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...Connor Talbert BLR 235 March 19, 2014 Professor Campbell KELLY McCLAIN, Plaintiff and Appellant, v. OCTAGON PLAZA, LLC, Defendant and Respondent. 159 Cal. App. 4th 784; 71 Cal. Rptr. 3d 885 COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT January 31, 2008, Filed FACTS: 1. McClain owns and operates a business known as “A+ Teaching Supplies.” 2. Ted and Wanda Charanian are the principals of Octagon, which owns and manages a shopping center in Valencia. 3. On February 28, 2003, McClain and Octagon agreed to a lease in which McClain would rent commercial space within the shopping center for a length of sixty two months. 4. The lease was constructed as a standard form agreement which was prepared by the American Industrial Real Estate Association. 5. Paragraph 1.2 describes the dimensions of the leased unit, which were stated to be, “approximately 2,624 square feet.” 6. Paragraph 2.1 states, “…Unless otherwise provided herein, any statement of size set fourth in this Lease, or that may have been used in calculating Rent, is an approximation which the Parties agree is reasonable and any payments based thereon are not subject to revision whether or not the actual size is more or less.” 7. Paragraph 2.4 states, “Lessee acknowledges that: (a) it has been advised by lessor…to satisfy itself with respect to the condition of the premises.., and their suitability for Lessee’s intended use, and (b) Lessee had made such investigation as it...
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...Court of Appeals An appeal is entitled to an individual (defendant) who has been found to be guilty by the court for some of all of the charges put against him or her. This person can appeal one or more levels of the appellate court. An appeal can occur in several levels of the courts. An example of this is the appealing to the circuit court of appeals first then going up to the next level. This process can continue until it has reached the United States Supreme Court. An appeal is known as a formal letter of request in which a highest court must review the decisions that had been made by a lower court. Usually the defendant in a lower court who had been found to be guilty of a crime will make an appeal. Some reasons that an appeal maybe made is insufficient evidence, how the jury handled the case, any violation of rights or the possibility of a mistake that was made by the judge hearing the case. An appeal can influence the processes and procedures of a court if the guilty defendant’s appeal has been won over by the higher courts. The entire trial will have to be examined at the beginning in detail, looking for any errors that may exist and had a factor in the ending verdict of that case. After this long drawn out process has ended and a winning of an appeal has occurred then some cases maybe completely retried. Sometimes an appellate court may decide that some of the elements of the case that has been reexamined, shouldn’t have even been within the trial at...
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...personally used "violence," as that term is defined in the law of false imprisonment. 2- The law that were affected is criminal law ,personal crimes 3- The issues at hand is false imprisonment. In a petition filed on December 5, 2012, the minor was alleged to have committed attempted second degree robbery, assault by means of force likely to cause great bodily injury, and false imprisonment by means of force and violence. Following a contested jurisdictional hearing, the juvenile court found not true the allegations of attempted robbery and assault, but it found true the allegation of false imprisonment by means of force and violence. The minor was held to be a ward of the court and released to the custody of his mother. 4- The juvenile court's finding that the minor committed felony false imprisonment is reversed. The matter is remanded to the juvenile court for entry of an amended dispositional order finding the minor to have committed misdemeanor false imprisonment. 5- The court held that way because there was no evidence that the minor personally took any additional action. 6- I don’t think the decision was fair. There was sufficient evidence to support a finding the minor committed misdemeanor false...
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...I. CITATION Palsgraf v. Long Island Railroad Co. (1928) II. THE FACTS a. Material Helen Palsgraf was standing on a train platform waiting for a train. Another passenger was assisted by two railroad guards while attempting to board the moving train and he dropped the package he was carrying onto the tracks. The package was filled with fireworks and exploded causing scales to fall at the other end of the platform onto Ms. Palsgraf thus injuring her. b. Legal Ms. Palsgraf brought a personal injury suit against the Long Island Railroad. The court found in favor for Ms. Palsgraf. The Long Island Railroad appealed and the appellate court affirmed the judgment. The Defendant appealed to the New York Court of Appeals which overturned the lower court’s decision. III. LEGAL ISSUES c. Specific Did the guards act in a manner that was negligent to the plaintiff when a assisting another man onto the moving train causing his package to fall, explode and cause injury to the plaintiff? d. General Was the harm resulting from this action reasonably able to be predicted? IV. THE HOLDING There was no negligence on the part of the guards. V. LEGAL RATIONALE Chief Justice Cordozo reasoned there “Here, by concession, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage throughout the station. The Dissenting opinion argued that because negligence...
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...Gifts to Minors Act (UGMA). At one point, almost half of the children’s money was invested in penny stocks. All the penny stocks except one suffered substantial losses. Buder’s ex-wife, Sartore, sued him, alleging that he had breached his fiduciary duty owed to the children under the UGMA. She sought to recover the funds lost by Buder’s investment of the children’s funds in penny stocks. Who wins? Buder v. Sartore, 774 P.2d 1383, Web 1989 Colo. Lexis 227 (Supreme Court of Colorado) Who wins? Answer: In the case of Buder vs. Sartore it deals with gifts to minors and the duties of the custodian of those gifts. The mother (Ms. Sartore) filed an action against the father (Mr. Buder) based on his alleged breach of the fiduciary duty he owed the couples minor children as the custodian of the gift money they had received from a grandparent. The trial court finds that the father had breached his fiduciary duty and assessed damages and attorney fees. The intermediate court affirmed and added attorney fees on appeal. The court held that (1) the standard of care under the Uniform Gift to Minors Act (UGMA) and the Uniform Transfers to Minors Act (UTMA), Colo. Rev....
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...ORTIGAS & CO. LTD., VS COURT OF APPEALS G.R. No. 126102, December 4, 2000 Topic: POLICE POWER FACTS: * This petition seeks to reverse the decision of Court of Appeals, dated March 25, 1996, in CA – G.R. SP No. 39193, which nullified the write of the write of preliminary injunction issued by the Regional Trial Court of Pasig City, Bramch 261, in Civil Case No. 64931. * On August 25, 1976, petitioner Ortigas & Company sold to Emilia Hermoso, a parcel of land known as Lot 1, Block 21, Psd-66759, with an area of 1,508 square meters, located in Greenhills Subdivision IV, San Juan, Metro Manila, and covered by Transfer Certificate of Title No. 0737. The contract of sale provided that the lot: a. Be used exclusively for residential purposes only, and not more than one single-family residential building will be constructed thereon. b. The BUYER shall not erect any sign or billboard on the roof for advertising purposes. c. No single-family residential building shall be erected until the building plans, specification have been approved by the seller. d. Restrictions shall run with the land and shall be construed as real covenants until December 31, 2025 when they shall cease and terminate These and the other conditions were duly annotated on the certificate of title issued to Emilia. * In 1981, the Metropolitan Manila Commission (now Metropolitan Manila Development Authority) enacted MMC Ordinance No. 81-01, also known as the...
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...“good law” is very simple to do. Keycite can also be used to find other sources of law that can be helpful to the case we are researching, making it a valuable multipurpose program in Westlaw. It can narrow results using West's digest topics and key numbers which makes it easy to pinpoint other cases dealing with the particular issue that is being researched (Teshima, 1999). Ruetgers-Nease Chemical Co. Inc. v. Firemen's Ins. of Newark, 566 A.2d 227 (N.J. Super. 1989), is a case where the plaintiff brought declaratory action to establish insurance coverage because of environmental contamination claims that were made against it. The insurance company did not want to cover the claims and moved to dismiss it for lack of jurisdiction. The court denied the motion and affirmed the chemical company’s claim because they have insolvent carriers that provides long-arm jurisdiction in New Jersey. The parallel citation to this case is 236 N.J. Super. 473. By using Kecite I found that the earliest case to cite this one is Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 677 (2nd Cir. (N.Y.) 1990). Nine years later it was criticized in the case of Texas Property and Cas. Ins. Guar. Ass'n v. Boy Scouts of America, 947 S.W.2d 682, 687 (Tex. App. 1999). However, in this same year it was also given positive treatment by General Elec. Co. v. California Ins. Guar. Ass'n, 997 S.W.2d 923, 933 (Tex. App. 1999). Keycite provides a section that separates positive treating cases from...
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