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 <mask> 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.


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 <mask>. 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.


In Matter of Burnett (89 N. Y. S. 2d 152), the testator directed his executor “in its <mask>, to pay and distribute my estate to the legatees, as specified in my Last Will and Testament, in kind ”. 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: “ 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.” 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.


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 " '<mask>, 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.)


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 “ at such time or tim.es as my said Trustee shall in its <mask> 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.”


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 .<mask> 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 précept of equality as between the members of said family group.


“business and affairs of the Company shall be managed by Edward Kalikow in his <mask>. 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” (exhibit B to motion ¶ 5 [emphasis added]).1 Indeed, Kalikow admits in his affidavit that he is the managing member of the LLC (Kalikow aff ¶ 1).


Under subdivisions (c), (d) and (e) of paragraph “ Seventh ”, 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 <mask>, 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 “ shall have the right to dispose of these moneys to such charitable institutions as they may deem advisable ”.


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 § 7-467 et seq. (MERA), by changing its process for evaluating candidates for promotion within the city’s 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 § 17.01 pro- vides: ‘‘Promotions 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.’’1 (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: ‘‘All 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. . . . ‘‘The 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. . . . ‘‘Examinations 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.’’ (Emphasis added.) Shelton Code of Ordi- nances, c. 2, Art. VI, § 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’s ranks, which new ordinance provided in perti- nent part: ‘‘Upon 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 <mask>, limit the applications to City employ- ees and proceed with only a promotional examina- tion.’’ (Emphasis added.) Shelton Code of Ordinances, c. 2, art. VI, § 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 ‘‘since 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’s final score.’’ (Footnote omitted.) In April of 2018, it was determined that there was a need for additional lieutenants in the city’s 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’s 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’s 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 § 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). ‘‘[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’s 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.’’ (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’s purposes, ‘‘[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.’’ (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’s 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’s 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 § 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: ‘‘The 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. . . .’’ 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’s merit system did not require a written examination, and accordingly, the city’s 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 § 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’s merit system promotional process. The CBA § 17.01 provides: ‘‘Pro- motions will be made in accordance with the provisions of the Merit System of the City of Shelton.’’8 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’s 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’s 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’s 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: ‘‘Effective 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.’’10 (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’s 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 . . . § 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, § 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, 215–16, 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’s 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’s 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’s 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’s 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 § 17.01 of the CBA must be read as a whole, and should be read consistent with § 29.03A. That may be so, but a corresponding reading does not change the court’s 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 ‘‘Merit System’’ 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 248–66 for Ordinance 896 entitled ‘‘Merit System and Personnel Rules.’’ 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 ‘‘Merit System and Personnel Rules’’ and is found in the Record at Exhibit 17, pages 248–66. The city’s 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: ‘‘Effective 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.’’ (Emphasis added.) Shelton, Conn., Code of Ordinances. See Record Exhibit 18, pages 267–352. 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 § 4-183 (j) provides in relevant part: ‘‘The 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. . . .’’ The board’s decision thus depends upon its finding that the city’s 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–case 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 ‘‘any written and oral examinations’’ ‘‘specified in the requirement sections of all ordinances.’’ (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’s merit system as that system is defined and modified by city ordinance from time to time, with the potential exception for negotiation required by § 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’s interests here are to ensure that promotions are provided in an evenhanded, fair and rational way. This interpretation is also consistent with § 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 § 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’s 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’s merit system while knowing that Ordinance 896 had been enacted months before defining and explaining the city’s merit system as a system that ‘‘may’’ 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’s 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.


The persons mentioned in paragraph 1 as residing in Soviet Russia when the will was executed have no rights under testator’s will which they may enforce. The only aid they could have received was in the exercise of the <mask> 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.


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 <mask> 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.


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<mask> is outside the realm of fair debate. See In re Tax Application of Emporia Motors, Inc., 30 Kan. App. 2d at 624.


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’oods. Congress never intended to provide, nor has it provided, that such a situation, involving no question of the <mask> 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.


. In addition to his cause of action for conversion, plaintiff also asserts a claim of “commercially unreasonable sale.” 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 <mask> 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.


The United States Supreme Court has used the same balancing test of <mask> 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 ).


"[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 <mask>, 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. ).)


*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 "<mask> under the totality of the circumstances” 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.’ ” (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’ counsel speak about a "stream of payments” into the future which will benefit the class. A review of the information provided to this court indicates that this "stream of payments” 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’ 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”. (82 NY Jur 2d, Parties, § 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’ and that they should likewise avoid every appearance of having done so”. (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 § 2609.)


The no-fault act provides for attorney fees when an insurance carrier unreasonably withholds benefits. The trial court’s decision about whether the insurer acted reasonably involves a mixed question of law and fact. What constitutes <mask> is a question of law, but whether the defendant’s denial of benefits is reasonable under the particular facts of the case is a question of fact. [Citations omitted.]


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 <mask> 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.


“The important factors in determining whether a retroactive tax transgresses the constitutional limitation are (1) ‘the taxpayer’s forewarning of a change in the legislation and the <mask> of . . . reliance on the old law,’ (2) ‘the length of the retroactive period,’ and (3) ‘the public purpose for retroactive application’ ” (21 NY3d at 246, quoting Matter of Replan, 70 NY2d at 456). With respect to the first factor, which has been described as the “predominant” 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 “no warning and no opportunity [in 2007] to alter their behavior in anticipation of the impact of the [2010 amendment]” (James Sq., 21 NY3d at 248).


Turner, 482 U.S. at 84 (quoting Procunier, 416 U.S. at 405). We “apply a deferential standard of review to challenges regarding prison regulations” 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) (“[R]egulations affecting the sending of a ‘publication’ . . . to a prisoner must be analyzed under the Turner <mask> standard.”). Under Turner, a “regulation is valid if it is reasonably related to legitimate penological interests.” 482 U.S. at 89.


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” (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” site and the court does not construe the commissioner’s 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 <mask> of the permit application could be properly weighed. The school district did comply with the commissioner’s 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.


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 § 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 <mask>, and their necessity, *702awarded petitioner his full $993 request. Admittedly, this sum was $493 more than County Law, article 18-B, § 722-b allows for the defense of a misdemeanant, save but for “extraordinary circumstances”. (See, County Law § 722-b.) This court found that, in this case, the extraordinary circumstances conditions had been met.


Second, the Court sensibly focuses on the <mask> 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 § 541.302 (15)."5 But that's all it is, an argument.


With respect to the <mask> 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. “In general, the court will take judicial notice of all facts which are notorious; that is, of common knowledge, within the court’s jurisdiction” (Richardson, Evidence [10th ed], § 9). The methods used in obtaining these samples are commonplace and involve the taking of a small amount of blood from defendant’s 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’s Office. In addition, defendant has not raised the issue of the safety of the above procedures.


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, § 1104, subd [b].) These privileges, however, do not relieve him from the duty to “drive with due regard for the safety of all persons”, nor do they protect him from “the consequences of his reckless disregard for the safety of others.” (Vehicle and Traffic Law, § 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 <mask> 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.)


Furthermore, Bear Stearns’ 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’s failure to award the claimant reasonable attorneys’ fees in accordance with the Age Discrimination in Employment Act. In reaching this conclusion, the court wrote that the lack of “any transparent fee calculation analysis by the Panel . . . handicaps our ability to review the <mask> of the Modified Award.” (497d at 143.) However, the court specifically noted that in general “arbitration] panels are not required to explain their awards” and limited its holding to the circumstances where, like the case before it, the panel’s previous award had been vacated “after a federal court had taken the rare step of concluding, correctly, that the Panel had acted in manifest disregard of the law” and, on remand, the panel issued a part of the award “without any authority.” (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’ fees to Fulco.


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<mask> of the delay in giving notice.


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 <mask>, or that, viewed individually or collectively, they deprived defendant of a fair trial or affected the outcome of the case.


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 <mask> of the explanation provided by a physician, the issue is whether, under the facts and circumstances of a given case, the physician’s 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]).


While there was extensive trial testimony offered by plaintiffs expert and defendant’s 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 <mask> of defendant’s 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 “watch for future equipment problems.” Plaintiffs expert was of the opinion that corrosion was the probable cause of the malfunction, while defendant’s expert disagreed.


*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 <mask> 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.


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 <mask> 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.


Ward v. Hudson Riv. Bldg. Co. (125 N. Y. 230, 235) allowed liquidated damages to a landowner for a contractor’s delay in erecting certain houses. Curtis v. Van Bergh (161 N. Y. 47, 52-54) allowed liquidated damages to a tenant for the landlord’s 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’s 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): “ 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<mask> 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. ’ ’


Considering the entire record, the evidence CCEMS presented on the <mask> 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.


The key becomes whether the attorney-client relationship between Volpe and D’Elia 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’s claim is that the acts of Hershman and apparently his reliance on Hershman’s 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 <mask> of Volpe’s reliance on the acts of Hershman.


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 <mask> 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.)


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<mask>, 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.


*254“In 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 <mask> 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.” (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 “[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.” (Omath Holding Co. v City of New York, 149 AD2d 179, 184-185 [1st Dept 1989]; see EPTL 9-1.3 [“(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”].)


. 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’s 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 <mask> of the defendant’s expectation of privacy, which is antecedent to determining “whether applicable cause and warrant requirements have been properly observed.” (See Rawlings v Kentucky, 448 US 98, —, 100 Ct 2556, 2565, supra [concurring opn, Blackmun, J.].)


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 “reasonableness” requirements of 18 U.S.C. § 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’s subsequent criticism of the government’s 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 “posture of this case,” and was careful not to “speculate on the applicability to other situations.” 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 <mask> 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’ 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 “uncertain”).


There can be no question that the present objectants are conclusively estopped from questioning now either the <mask> 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.


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’s 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 <mask> 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’s 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’s 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 “open fields”. Equally as clear, an owner would have a reasonable expectation 1 of privacy in these private areas.


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 <mask> 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’ 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’s 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.


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 <mask> 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 § 50-e [5].)


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 <mask> 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."


*953and he was not contesting the first or third elements of design immunity, namely the existence of a causal relationship and <mask> 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.


The fairness or <mask> 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.


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 "<mask> 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).


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 <mask> 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.)


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’s 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 <mask>.


When a search is challenged, the People have the burden of showing that it was "conducted pursuant to standardized procedures” (People v Lloyd, 167 AD2d 856, 857; accord, People v Ballard, supra, at 1026), a finding which is adequately supported in this record. The <mask> of a search is calculated by weighing the governmental and societal interests advanced by the search against the defendant’s 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’s 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.


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 <mask> 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” within the context of the Open Meetings Law, and (2) to the amount of reasonable attorneys’ fees and costs, if any, to be awarded to the petitioners are referred to Special Referee John Buckley, to hear and report, with recommendations.


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 <mask> of the subsequently enacted amendment. The court stated (p. 78): “In 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’ property for residence purposes in the factual situation presented. Admittedly there has been no chang’e. 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.” The application of the principle of res judicata in the foregoing case is in harmony with the rule in New York that ‘ ‘ Generally speaking, a declaratory judgment is res judicata in the same manner and extent as any other judgment” (7 Carmody-Wait, New York Practice, p. 490 and cases cited under § 217; see, also, Restatement, judgments, § 77; annotation: ‘ ‘ Extent to which principles of res judicata are applicable to judgments in actions for declaratory relief ”, 10 A. L. R. 2d 782).


Section 125.25 (subd 1, par [a]) of the Penal law provides for an affirmative defense where: “The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the <mask> of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.”


wrote that “[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.” 712 F.3d 1021, 1025 (7th Cir. 2013). We recognized that “[t]his could be important in some cases, because the Convention grounds for vacatur are slightly diﬀerent from those in Chap- ter 1 of the FAA.” Id. Because “we d[id] not regard [Johnson Controls] as a close case,” 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 ﬁnd that there is a minimally reasonable basis for the arbitral panel’s actions. Instead, he argues, a court must ask whether the panel’s decision was reasonable and fair. Looking only at <mask>, 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’s decision. The district court did not overlook fairness. It concluded that the Panel’s 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 (“Laws was not denied a fair hearing because the record supports several bases on which the panel reason- ably could have denied him a continuance.”); id. at 401 (“In light of these reasonable bases for denying Laws’s continu- ance, the panel did not deny him a fair hearing.”); El Dorado, 8 No. 21-1633


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 <mask> 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” (421d 61, 89, supra).


"No case in this state has passed upon the specific question of the <mask> 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.]


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 “reserve” fund) and the <mask> 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.


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 <mask> 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.


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’s action was fiscal restraint as has heretofore been stated. It, therefore, becomes material and necessary to examine the <mask> and the legality of the county’s action in the light of the circumstances and of the classification made.


It wrote (p 504): “In 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 <mask>. 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 ‘unreasonable’ in the light of the values of freedom of expression.”


*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 <mask> of safety precautions is almost always a factual issue for the jury.


"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 <mask> 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.)


It is true that “the <mask> of a plaintiff’s reliance on an alleged misrepresentation . . . is generally a question of fact inappropriate for summary judgment.” 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 § 56-7-135 provides, in relevant part:


This court reviews challenges to the length of a sentence within the appropriate sentence range “under an abuse of discretion standard with a ‘presumption of <mask>.’” 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’s 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. §§ 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. §§ 40-35-102 (2018), 41-1-126 (2018) (validated risk and needs assessments).


Warrantless searches are presumptively unreasonable under the Fourth Amendment, and "'the ultimate touchstone of the Fourth Amendment is "<mask>."'" 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—and the State carries the burden to justify a warrantless search. 308 Kan. at 481.


It seems to the court that these objections relate to the <mask> 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: “ 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.”


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’s 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 <mask> 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) § 2520.6 (u) which states: “[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’s license * * * , voting address [and] occupancy * * * for an aggregate of less than 183 days * * * [a] year.” Respondent’s 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’s 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].)


The People’s burden of proof as to the programmatic purpose is derived from the constitutional principle underlying “the *723<mask> of a suspicionless roadblock stop, i.e., ‘a 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’ ” (Trotter, 28 AD3d at 168, quoting Brown v Texas, 443 US 47, 50-51 [1979]). Absent such proof, a court is left “without any basis to assess ‘the gravity of the public concerns served by the seizure’ or ‘the degree to which the seizure advance[d] the public interest’ ” (Cabrera, 13 Misc 3d 1205[A], 2006 NY Slip Op 51689[U], *3).


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 <mask> and from the perspective of an ordinary, reasonable observer.


“guarantor is a ‘debtor’ within the definition set forth in Uniform Commercial Code § 9-105 (1) (d) [now § 9-102 (a) (28) (debtor); § 9-102 (a) (71) (secondary obligor)], and, therefore, a guarantor may not waive the defense of commercial reasonable*262ness, pursuant to Uniform Commercial Code § 9-501 (3) [now §§ 9-601, 9-610].” (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 “anomalous 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 <mask> in the disposition of collateral” because section 3-606 “is applicable only to the pre-default stage, while § 9-504 [now §§ 9-601, 9-602, 9-610] specifically governs the disposition of any collateral remaining to secure the debt.” (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 [“in the context of rights and duties after default, our legal system traditionally has looked with suspicion on agreements that limit the debtor’s rights and free the secured party of his duties . . . The context of default offers great opportunity for overreaching”]; AAR Aircraft & Engine Group, Inc. v Edwards, 272d 468, 472-473 [7th Cir 2001] [nonwaiver rule “prevents 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”].)3


Moreover, even accepting plaintiff’s 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 <mask> (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’ remaining arguments have been examined and found to be lacking in merit.


*466Mr. Reape’s affidavit also claims that it is expensive for the petitioner to do business because of “the 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.” 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 “a handful of companies [are] currently purchasing these rights.” But the <mask> 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 — 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’ time — the court must conclude that this business is one in which the terms simply cannot be “fair and reasonable.” Surely the Legislature did not mean to equate fairness with “whatever the market will bear.”


The petitioner seeks to bolster his position by contending that the subject premises “ is located in an area and on a business street, that would not lend itself to large units containing families with children.” 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’s 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 <mask> and justification to the City Administrator’s determination.


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 <mask>. (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.)