The purpose of the stipulation at issue is clear to the extent that it sets forth a process whereby the parties have decided to avoid the expense of continued litigation and at the same time permit plaintiffs’ counsel to place before the court a request for attorneys’ fees. There is no question the defendants have reserved their right to challenge the <mask> of the request and, in that context, whether or not plaintiffs’ counsel have achieved any benefit, substantial or otherwise, in being a causative factor in the Medical Action filing of the subject Form 8-K with the SEC. However, there exists no purpose whatsoever in allowing for the application if it is, as argued by defendants, illegal on its face. The entire purpose of the stipulation is to avoid expense of litigation and allow the application for counsel fees; to permit an application which is illegal on its face would render the agreement, in the view of the court, completely illusory.


We review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges with great restraint. (People v. Thomas (2011) 51 Cal.4th 449, 474, 121 Cal.Rptr.3d 521, 247 P.3d 886.) The trial court's determination is a factual one, and as long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications *10offered, its conclusions are entitled to deference on appeal when they are supported by substantial evidence. (Hamilton, supra, 45 Cal.4th at pp. 900-901, 89 Cal.Rptr.3d 286, 200 P.3d 898 ; Thomas, at p. 474, 121 Cal.Rptr.3d 521, 247 P.3d 886.) In essence, the issue is whether the trial court finds the prosecutor's explanation to be credible, based on factors such as the <mask> of the explanation, the prosecutor's demeanor, and the trial court's own observations of the voir dire. (Lenix, supra, 44 Cal.4th at p. 613, 80 Cal.Rptr.3d 98, 187 P.3d 946.) With these principles in mind, we turn to the specific peremptory challenges under review.


It is conceded that this court has authority to direct payments out of these funds for the current maintenance and support of the infants and no one questions the <mask> of the expenses incurred by the department of welfare but the Veterans ’ Administration requests the court to limit the current payments to $68.55 per month for each infant, the amount paid into the funds by them.


In People v. Schmitz (2012) 55 Cal.4th 909, 149 Cal.Rptr.3d 640, 288 P.3d 1259, the California Supreme Court applied the balancing test to hold a warrantless search of a known parolee who was a passenger in a vehicle did not violate the driver's Fourth Amendment rights. ( Id. at pp. 921-922, 149 Cal.Rptr.3d 640, 288 P.3d 1259.) The court described the test as follows: "Whether a search is reasonable within the meaning of the Fourth Amendment depends on the ' "totality of the circumstances." ' [Citations.] This test includes an assessment of the degree to which a search promotes legitimate governmental interests, balanced against the degree to which it intrudes upon an individual's privacy. [Citations.] Both we and the United States Supreme Court have employed traditional standards of <mask> to evaluate the constitutionality of warrantless vehicle searches and parole searches. Accordingly, we consider whether the officer's search here was reasonable, with a 'salient circumstance' being the presence of a parolee subject to a search condition. [Citations.]" ( Id. at pp. 921-922, 149 Cal.Rptr.3d 640, 288 P.3d 1259.)


8. counsel … would have requested mental health diversion under section 1001.36.” The People respond Banner “cannot establish … ineffective assistance of counsel” “[b]ecause the record does not establish [he] was eligible for pretrial mental health diversion ….” We agree with the People. A. Additional Background At a pretrial hearing approximately seven months after the crime occurred, Banner’s counsel declared a doubt regarding Banner’s mental competency to stand trial. (§ 1368.) Just before trial, counsel indicated the possibility of calling an expert witness to describe Banner’s mental state during the incident. 17 During sentencing, counsel sought local mental health court as an alternative to imprisonment. Counsel also argued Banner’s testimony, i.e., disclaiming responsibility, was a “symptom of his mental illness.” As noted above, the court recognized Banner suffered from “mental health issues” but believed it “was somewhat in abeyance at the time of the situation for whatever purpose or whatever reason.” B. Analysis The Sixth Amendment guarantees the “ ‘right to the effective assistance of counsel.’ ” (Strickland v. Washington (1984) 466 U.S. 668, 685—686.) “ ‘[T]o establish a claim of ineffective assistance of counsel, [Banner] bears the burden of demonstrating, first, that counsel’s performance was deficient because it “fell below an objective standard of <mask> [¶] ... under prevailing professional norms.” [Citations.] Unless [he] establishes the contrary, we shall presume that “counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” [Citation.] If the record “sheds no light on why counsel acted or failed to act in the manner challenged,” an appellate claim of ineffective assistance of counsel must be rejected “unless counsel was


Nor could it be effectively contended that the conversation can predicate an estoppel on the defendants. The plaintiff was, or should have been, aware of the provision in his contract under which the securities might be sold without notice the moment their value fell below the 110 per cent. In the panicky condition of the market at the time, that might have been reached any moment. He, in <mask>, could not rely on the stability of any given factor for any space of time; nor could he reasonably expect the defendants in a toppling market to hold off selling, for their protection and possibly for his own. In fact, he himself would possibly have allowed the securities to go, with the hope of repurchasing at a lower figure, and thus recouping his loss. That is conjectural, of course, and, in retrospect, he has suffered damage. But I cannot see the breach of any legal duty by the defendants. Damages without such breach cannot be compensated at law. I will, therefore, give judgment for the defendants.


In construing the amendment we must consider its design and practical tendency, its <mask> and necessity. A law is not to be pronounced unwise nor condemned as unreasonable because it may occasion some evil. All general laws are liable to this objection, yet without general laws society could not be governed. Whenever a law is found to be a dead letter, or productive of little or no good, or to- cause much evil, it well deserves the attention of its makers. Until it is repealed it is binding upon its subjects.


to consent to an unreasonable search. Notwithstanding that the terms of both the model log-on banner and the model computer-user agreement would permit monitoring of an employee’s computer use for purposes other than network defense, we believe that the specific EINSTEIN 2.0 operations to which Executive Branch employees would be asked to consent would be reasonable. 8 Where, as here, an Executive Branch employee is being asked to consent only to a reasonable search, there is no invalid conditioning of public employment on the employee’s relin- quishment of his Fourth Amendment rights against unreasonable searches and no coercion that renders a search involuntary. See, e.g., United States v. Sihler, 562 F.2d 349 (5th Cir. 1977) (prison employee’s consent to routine search of his lunch bag valid); cf. Drug Testing at 7 (“[C]onsent to an unreasonable search is invalid.”) (emphasis added); Anobile, 303 F.3d at 124 (similar); McDonnell, 807 F.2d at 1310 (similar). Thus, the inquiry regarding the voluntariness of an Executive Branch employee’s consent merges with the underlying inquiry regarding the overall <mask> of EINSTEIN 2.0 operations. 9 See Drug Testing at 7 (“[I]t appears that the government could not insist upon a complete waiver of Fourth Amendment rights as a condition of public employment and that the courts will scrutinize the search under the Fourth Amendment to deter- mine whether it is reasonable.”). Therefore, we turn to the reasonableness of EINSTEIN 2.0 operations. A work-related administrative search by a public employer conducted for a non-law enforcement purpose is not per se unreasonable under the


This provision is mandatory and admits of no exceptions. This section further provides in substance that at the expiration of sixty days from the grant of letters testamentary or letters of administration the person having such a claim may present to the Surrogate’s Court a petition praying that the executor or administrator may be cited to show cause why he should not be required to make such payment. Upon the return of the citation if it appears that the executor or administrator has in his possession money belonging to the estate and that the validity and <mask> of the claim is admitted the surrogate shall direct the payment within ten days thereafter.


The Family Court made the following relevant COLs: 9. "The use of force upon or towards another person is justified when the actor believes that such force is immediately necessary to protect himself against the use of unlawful force by the other person on the present occasion." HRS § 703-304(1) (2014). The <mask> of the Minor's belief that the use of such protective force was immediately necessary shall be determined from the viewpoint of a reasonable person in the Minor's position under the circumstances of which the Minor was aware or as the Minor reasonably believed them to be. The amount of force used by Minor was not reasonable under the circumstances. 10. "Deadly force" means force which the actor uses with the intent of causing or which the actor knows to create a substantial risk of causing death or serious bodily harm." HRS § 703-300 (2014). The act of Minor stabbing [CW] in the abdomen constituted deadly force. 11. "The use of deadly force is justifiable ... if the actor believes that deadly force is necessary to protect himself against death, serious bodily injury, kidnapping, rape, or forcible sodomy." HRS § 703-304(2). The Court does not find the use of deadly force by Minor was justifiable, and the use of said force was not objectively reasonable under the circumstances in this case.


The motion is made pursuant to CPL 240.20 (subd. 3) which, standing alone, might be deemed to warrant such relief upon a showing of materiality and <mask>. In this ¡State, however, inspection of Grand Jury minutes has been codified in 210.30 (subd. 2) and the court’s power to grant such relief before trial and absent Brady considerations, is limited to motions directed at the legal sufficiency of the indictment.


As the statute tells us, where there are practical difficulties ur unnecessary hardship in the way of carrying out the strict ■letter of the zoning ordinance, the Board “ shall have the power *870* * * to vary or modify the application of any of the regulations or provisions of such ordinance ”. (Town Law, § 267, subd. 5). The exercise of such power is permissive and not mandatory. Before such discretion may be exercised favorably in behalf of the petitioner on the ground of practical difficulties and unnecessary hardship, he has the burden of proof to establish that the land in question cannot yield a reasonable return if used only for the purpose allowed in that zone; that the plight of the owner is due to unique circumstances and not to general conditions in the neighborhood which may reflect the un<mask> of the zoning ordinance itself, and that the use to be authorized by the variance would not alter the essential character of the locality (Matter of Otto v. Steinhilber, 282 N. Y. 71, 76; Matter of Clark v. Board of Zoning Appeals of Town of Hempstead, 301 N. Y. 86; Matter of Hickox v. Griffin, 298 N. Y. 365; Matter of Young Women’s Hebrew Assn. v. Board of Stds. & Appeals, 266 N. Y. 270).


Appellees' Counsel: And under the expert disclosure I said-'Answer: 194.2(f) for testifying expert. 2. Dr. Himmelsehr is expected to testify regarding the nature, extent and causation of the injuries, the <mask> and necessity of the medical care received by plaintiff for the injuries sustained in the collision, including but not limited to the need for future treatment and the costs associated therewith as well as all other damages listed above.' Appellant's Counsel: And that's incomplete, though, Your Honor, because that is just responsive to the subject matter. The next one, No. 3, is the general substance of the expert's mental impressions and opinions and a brief summary of the basis for them or the documents provided. All she cites to are the affidavits on file. So if this is an opinion that's not contained in the medical records, which it's not, then he's precluded from testifying. The Court: Objection's overruled. Based on this record, we cannot conclude that the trial court abused its discretion in impliedly ruling that the disclosure response was adequate. The record establishes the disclosure putting Appellant on notice regarding the subject matter of Dr. Himmelsehr's testimony and cited to affidavits containing the medical records. Rule 194.2(f) is not meant to encourage "gotcha" objections at trial, but to provide opposing counsel with a meaningful opportunity to prepare for cross-examination; failure to object or to notify the responding party of the inadequate disclosures before trial subjects the complaint to waiver. Morua , 979 S.W.2d at 620. Because it is not clear that the trial court abused its discretion in overruling Hernandez's objection, Point of Error Five is overruled.


A probation condition is not invalid unless it has no relationship to the conviction, relates to conduct which is not in itself criminal, and is not reasonably related to future criminality. ( People v. Olguin (2008) 45 Cal.4th 375, 379, 87 Cal.Rptr.3d 199, 198 P.3d 1 ( Olguin ).) We review the <mask> of probation conditions for abuse of discretion. ( Ibid. ) We focus on defendant's arguments related to the first and third prongs because it is undisputed that using electronic devices is not in itself criminal.


The two prongs of the test for ineffective assistance of counsel may be addressed in either order, and the entire ineffectiveness analysis should be viewed with a strong presumption that counsel’s actions were reasonable. Id. To show that counsel’s performance was deficient, a defendant must show that counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law. Id. To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. Pineda makes three ineffective assistance of counsel arguments: trial counsel was ineffective for not objecting and moving for a mistrial based on prosecutorial misconduct, appellate counsel was ineffective for failing to raise on appeal trial counsel’s ineffectiveness in regard to the first argument, and trial counsel was ineffective for not calling any witnesses at trial. Failure of Trial Counsel to Object and Move for Mistrial. Pineda first argues that his trial counsel was ineffective in failing to timely object and move for a mistrial in response to prosecutorial misconduct during the State’s opening and closing statements. We conclude, as the trial court did, that this claim is procedurally barred. A motion for postconviction relief asserting ineffective assistance of trial counsel is procedurally barred when (1) the defendant was represented by a different attorney on direct appeal than at trial, (2) an ineffective assistance of trial counsel claim was not brought on direct appeal, and (3) the alleged deficiencies in trial counsel’s performance were known to the defendant or apparent from the record. State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018). Pineda was represented by different counsel on direct appeal than his trial counsel. Although his appellate counsel raised certain ineffective assistance of trial counsel claims on direct appeal, he did not raise the claim now being raised. Further, these alleged deficiencies in his trial counsel’s performance were either known to Pineda or apparent from the record. Therefore, the claim of ineffective assistance of trial counsel in regard to prosecutorial misconduct either was or could have been brought on direct appeal, and these claims are procedurally barred. See State v. Parnell, 305 Neb. 932, 943 N.W.2d 678 (2020). Failure of Appellate Counsel to Include Ineffective Assistance of Trial Counsel Claims. Pineda next argues that his appellate counsel was ineffective for failing to assign as error on appeal trial counsel’s ineffectiveness for failing to timely object and move for a mistrial in response to prosecutorial misconduct. When a claim of ineffective assistance of appellate counsel is based on the failure to raise a claim on appeal of ineffective assistance of trial counsel (a “layered” claim of ineffective assistance of counsel), an appellate court will look at whether trial counsel was ineffective under the Strickland test. State v. Parnell, supra. If trial counsel was not ineffective, then the defendant was not prejudiced by appellate counsel’s failure to raise the issue. Id. Much like claims of ineffective assistance of trial counsel, the defendant must show that but for counsel’s failure to raise the claim, there is a reasonable probability that the outcome would have been different. Id. In determining whether trial counsel’s performance was deficient, courts give counsel’s acts a strong presumption of <mask>. Id.


In support of these judicial exemptions, the Court of Appeals stated: “The determination whether the exemption is available to an owner in a particular case turns on the site and purpose of the work (Cannon v Putnam, 76 NY2d, at 650). In formulating this test, the Court was mindful of the ‘underlying notions of <mask> and fairness that motivated the Legislature’s adoption of the dwelling-owner exemption.’ ” (Khela v Neiger, 85 NY2d, supra, at 337.)


Under normal circumstances, pursuant to Executive Law § 259-i (3) (c) (iii), the Department is to serve a parolee a copy of the notice of violation within three days of execution of the parole warrant. Accordingly, since the Department lodged the warrant against petitioner on October 29th, pursuant to Executive Law § 259-i (3) (c) (iii), the three-day limit would have fallen on November 1, 2012. However, on October 29, 2012, date of execution of the warrant, New York City was battered with wind and flood damage caused by Hurricane Sandy. In his attempt to emphasize the un<mask> of the delay in service, defense counsel makes reference to the fact that the Rikers Island Judicial Center was only closed for two days after the hurricane, and that it resumed full operations on Wednesday, October 31st (see defense affirmation at 6), so therefore there was no excuse for not serving the petitioner with his notice until November 9th. The defense counsel, however, failed to acknowledge that a difference in location that day made a significant difference in how quickly an area and the people therein were able to rebound. The Rikers Island Judicial Center is located in an inland bay in the East River surrounded by Queens and Bronx boroughs. The petitioner’s parole officers and offices, however, were located on Bay Street in Staten Island, an area exposed in a direct line with the surge from the Atlantic Ocean, and one of the most well publicized areas most devastated by the hurricane flooding which resulted in unprecedented power and communication outages and structural damage. Accordingly, using the Rikers Island Judicial Center as the yardstick for reasonableness in this situation is inapposite.


‘‘ Unconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party. Whether a meaningful choice is present in a particular case can only be determined by consideration of all the circumstances surrounding the transaction. In many cases the meaningfulness of the choice is negated by a gross inequality of bargaining power. The manner in which the contract was entered is also relevant to this consideration. Did each party to the contract, considering his obvious education or lack of it, have a reasonable opportunity to understand the terms of the contract, or were the important terms hidden in a maze of fine print and minimized by deceptive sales practices? Ordinarily, one who signs an agreement without full knowledge of its terms might be held to assume the risk that he has entered a one-sided bargain. But when a party of little bargaining power, and hence little real choice, signs a commercially unreasonable contract with little or no knowledge of its terms, it is hardly likely that his consent, or even an objective manifestation of his consent, was ever given to all the terms. In such a case the usual rule that the terms of the agreement are not to be questioned should be abandoned and the court should consider whether the terms of the contract are so unfair that enforcement should be withheld. “ In determining <mask> or fairness, the primary concern must be with the terms of the contract considered in light of the circumstances existing when the contract was made. The test is not simple, nor can it be mechanically applied. The terms are to be considered1 in the light of the general commercial background and the commercial needs of the particular trade or case \ Corbin suggests the test as being whether the terms are ‘ so extreme as to appear unconscionable according to the mores and business practices of the time and place 1 cobbin, op. cit. supra Note 2. We think this formulation correctly states the *622test to be applied in those cases where no meaningful choice was exercised upon entering the contract. ’ ’ Therefore, pursuant to subdivision (2) of section 2-302 of the Uniform Commercial Code the defendants are entitled to a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in determining whether the contract was as a matter of law unconscionable.


In some respects Illinois v. Krull, supra,480 U.S. 340, 107 S.Ct. 1160 had been presaged by Michigan v. DeFillippo(1979) 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343, which held that the exclusionary rule did not apply to fruits of an unlawful arrestmade in reliance on an ordinance later held unconstitutional. The analysis there was framed not around the <mask> of the officer's reliance as such but on the existence of probable causeto believe the defendant had committed a crime, which in turn depended on whether the ordinance was reasonably believed to be valid. The court reasoned that "[a] prudent officer, in the course of determining whether respondent had committed an offense ... should not have been required to anticipate that a court would later hold the ordinance unconstitutional." (Id.at pp. 37-38, 99 S.Ct. 2627.)


Petitioner’s claim that the consent given was conditioned upon the veracity of the information provided by respondent is also without merit. While petitioner’s consent did state that it was "[predicated upon the accuracy of the information provided in all prior submissions”, Real Property Law § 226-b does not contain any language which contemplates a "conditional” consent. The statute gives the landlord ample time to investigate the request and determine <mask>. To permit such conditional consent would create uncertainty and leave subtenants and tenants alike in limbo during the sublease period.


The question to be determined now is whether it was proper to issue a search warrant in order to inspect the premises involved. The warrant procedure is designed to guarantee that a decision to search private property is justified by a reasonable governmental interest. But <mask> is still the ultimate standard. (Camara v. Municipal Ct., 387 U. S. 523.) If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant (Camara v. Municipal Ct., supra). Where considerations of health and safety are involved, the facts that would justify an inference of “ probable cause ” to make an inspection are clearly different from those that would justify such an inference where *736a criminal investigation has been undertaken (Frank v. Maryland, 359 U. S. 360). The test of “probable cause ” required by the Fourth Amendment can take into account the nature of the search that is being sought. (Frank v. Maryland, supra.) Both the Camara and Frank cases (supra) deal with the searches of residences and also of commercial buildings by municipal authorities (building and health inspectors, fire marshals, etc.) for violations of the local building, health, sanitation and fire ordinances. In the Frank case it was held that such inspections may be made without first obtaining a search warrant, the theory being that the safety, health and welfare of the community is at stake.


A pretrial identification of a defendant is not admissible if it is the product of unnecessarily suggestive procedures (Stovall v Denno, 388 US 293; People v Adams, 53 NY2d 241). "The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned” (Stovall v Denno, supra, at 302). In the absence of exigent circumstances, showup identifications are strongly disfavored (People v Johnson, 81 NY2d 828, 831; see, People v Rivera, 22 NY2d 453, cert denied 395 US 964). Showups held shortly after the commission of a crime may be permissible in the interest of prompt identification because the victim’s memory is still fresh (see, People v Johnson, supra; People v *874Duuvon, 77 NY2d 541; People v Riley, 70 NY2d 523). The showup here, occurring either a week or two months after the incident, was unduly suggestive. First, it was not prompt and immediate (see, People v Johnson, supra). Additionally, the police officer’s comment that the person outside the car "was a boy that was accused” of the crime was highly suggestive (see, People v Liano, 142 AD2d 602, lv denied 72 NY2d 958). Thus, the People failed to sustain their burden of establishing the <mask> of the identification procedure and the lack of undue suggestiveness (see, People v Chipp, 75 NY2d 327, 335, cert denied 498 US 833).


Over the course of seven years of litigation, plaintiffs have produced voluminous non-privileged material related to the amounts demanded by the regulatory agencies and class plaintiffs, the facts and legal theories alleged as the basis for the demands and liability, and permitted extensive interrogation of its former legal counsel, Lewis Liman, Esq., who represented Bear Stearns in its defense of the regulatory investigations. Moreover, the need to determine the <mask> of settlements under an objective standard does not require a waiver of the attorney-client privilege and the legal analysis of its counsel (see Deutsche Bank Trust Co. of Ams. v Tri-Links Inv. Trust, 43 AD3d 56, 65-66 [1st Dept 2007]).


In determining the validity of a contract for sale of religious property, the court, in Church of God of Prospect Plaza (supra), promulgated a two-tier analysis of the proposed sale. This analysis was adopted by the court in Matter of Church of St. Francis De Sales (110 Misc 2d 511, 512 [Sup Ct 1981]), where the court stated that consideration must be given to (1) *471the fairness and <mask> of the terms of the transaction, as of the "time of the making of the contract”, and (2) whether the sale is in the best interest of the congregation at the time approval of the contract is considered. The critical variable of the contract for the court was timing. The time the contract was entered into was the moment for calculating fair market value. If approval was sought a year later and there was a rise in market value, the contract could not be defeated because the sale price was below market value. The second tier of the formula would allow the court broad discretion in analyzing the terms of the contract and whether it is in the best interest of the religious society. This is determined at the time of application for approval and would allow the court to deny the application if it would not benefit the religious society. Under certain circumstances, there may be protection for the purchaser. Where a religious corporation breaches a contract before receiving court approval, a purchaser may be entitled to recover reliance damages expended by him in performance of the contract. (Wilson v Ebenezer Baptist Church, supra.)


When applying the test set forth in Adams, it can hardly be said that the issuance of the search order in the instant case was proper. The defendant’s status as a probationer is not contested. However, defendant was supervised as a result of a misdemeanor charge of making a false written statement. Defendant was not on probation for a sex offense, nor does the affidavit reflect that defendant has ever been arrested for similar charges. Defendant merely failed to alert his probation officer that police questioned him — he was not arrested, nor based on the facts presented in the affidavit does it appear that defendant committed any wrongdoing. However, after a mere technical violation on a misdemeanor probation supervision (defendant’s probationary supervision term was approximately two months away from expiring), the probation officer felt “compelled” to seek a search order and search defendant’s residence, including a padlocked closet. The court fails to see how searching defendant’s residence would be consistent with the duty the probation officer has to supervise defendant, but rather, it seems that the probation officer, after supervising defendant for almost three years had a “hunch” that defendant perhaps was in possession of illegal pornography. However, a “hunch” is insufficient to establish the <mask> of the search, especially after a month had transpired from the time defendant was merely questioned by police to when the search was actually conducted; the items seized from defendant’s residence had nothing to do with the police questioning at Glen Island Park. It seems that the search was aimed at finding evidence of a new crime rather than just merely for supervising defendant. It can hardly be concluded, based on the scant facts of the probation officer’s affidavit, that there was reasonable cause for the issuance of the search order. Indeed, this is belied by the fact that the Ossining Justice failed to execute a search order with sufficient specificity for a proper search. The order reads as follows:


This case presents several questions concerning proper police conduct within the confines of the Fourth Amendment of the United States Constitution, and section 12 of article I of the New York State Constitution. Where, as here, the <mask> of a search and seizure is at issue, the police conduct must be examined step by step, as each incremental intrusion must find legitimate justification.


The elements of a private nuisance cause of action are "(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failure to act” (Copart Indus. v Consolidated Edison Co., 41 NY2d 564, 570). Defendant contends the plaintiffs’ proof as to the third element was lacking and, in particular, that Supreme Court erred in admitting the testimony of plaintiffs’ expert as to un<mask> because the expert failed to measure the actual sound level generated by the unit in question.


Inasmuch as the divorce decree “ratified and confirmed ” the agreement between the parties dated February 27, 1956, as modified by agreement of August 31,1956 “ as fully as if set out herein ” (emphasis supplied), the provision for the payment of counsel fees was likewise incorporated. The <mask> of such counsel fees, however, cannot be determined summarily. Accordingly, while the court holds and determines that the defendant is now liable to the plaintiff for additional alimony for the years mentioned above and for counsel fees ‘ ‘ as and for further alimony,” the question of the amount of such additional alimony, including counsel fees, will be referred to an official referee for an assessment, in accordance with the provisions of rule 113 of the Rules of Civil Practice as recently amended.


In the affirmation in opposition, the People argue that sufficient proof was presented before the grand jury to show the intent of the defendant and that Michelle Moon was reasonable in fearing physical injury, or serious physical injury, the commission of a sex offense against, or the kidnapping, unlawful imprisonment or death of herself. The People do not address defendant’s argument that the <mask> standard of article 35 of the Penal Law should be applied to the victim’s fears. Also, the People do not address defendant’s argument that the fear must be imminent in order to come within the scope of the statute.


The "facial invalidity of [a search] warrant" is a separate question from the "manner in which the officers conducted the search." Baranski , 452 F.3d at 443. See also Hamilton , 591 F.3d at 1025 ("Whether a warrant is properly issued, however, is a separate question from whether it is reasonably executed, which is governed by the <mask> Clause of the Fourth Amendment[.]"); United States v. Basham , 268 F.3d 1199, 1204 (10th Cir. 2001) (noting the reasonableness of the execution of a warrant "is an entirely different matter than the question of whether the warrant itself is valid"). "To say that a warrant satisfies the Warrant Clause upon issuance, however, by no means establishes that a search satisfies the Reasonableness Clause upon execution[.]" Baranski , 452 F.3d at 445.


On the proofs submitted to the court there is shown to exist a substantial controversy as to the extent of the services rendered and the <mask> of the charge made. Equally there is substantial controversy respecting the circumstances preceding and attending the collection of the check referred to. As a matter of discretion the court has determined to remit the parties to an appropriate action at law and will not exercise its power to make a summary order in the circumstances. (Matter of Bailey v. Rutherford, 242 N. Y. 220; Matter of Shanley, 124 App. Div. 935; Matter of Nellis, 116 id. 94; Matter of Hitchings, 157 id. 392.) This disposition is without prejudice to the respective rights of the parties as they may be determined in such action, if initiated.


For the reasons explained above, Vista Verde Farms is distinguishable and does not provide a sufficient legal basis for attributing legal responsibility to Gerawan for the donation made by CFFA, a distinct third party. (See, e.g., Superior Farming Co. v. Agricultural Labor Relations Bd . (1984) 151 Cal.App.3d 100, 122-123, 198 Cal.Rptr. 608 [ Vista Verde Farms rule must not "be applied mechanically, without regard to circumstances, <mask>, and fairness"].) There was no substantial evidence in the record to indicate that any workers were coerced or misled by CFFA's donation. Moreover, because of the important conjunction and interplay of free speech and concerted activities in this matter, we hold that Gerawan was not required to prevent, intervene in or repudiate the workers' bus trip and protest, and its failure to do so was not an unfair labor practice.91 Accordingly, the Board's finding that Gerawan committed an unfair labor practice in connection with the events surrounding the October 2, 2013 bus trip was not supported by substantial evidence.


As hereinbefore stated, the parties had reached agreement at the initial stage of the proceeding except as to the issue of attorneys’ fees. Continued litigation at that point became unnecessary and self-serving. The "bootstrap” doctrine urged by plaintiffs attorney is that because the parties could not agree on attorneys’ fees, 40 hours were spent in litigation and now such a fee is justified and reasonable. Such a "catch-22” argument is rejected by this court. It was unnecessary to pursue the default money judgment, and the 40 hours are not compensable under section 108 of the Banking Law. The *288intent of section 108 of the Banking Law is to protect the borrower and it would go against such intent to require the defendants herein to pay for attorneys’ fees unnecessarily incurred. The courts of our State have enough caseload to administer without creating a greater burden merely for the purpose of justifying legal fees. In fact, by making the <mask> of attorneys’ fees initially rest upon the criterion of necessity, there should result a lessening of litigation and an encouragement for settlement. In this instant fact situation, a defaulting borrower may more readily acknowledge his default knowing that he will be reducing his further liability for attorney fees.


Similarly, the <mask> of searches of persons at a correctional institution or a detention facility must turn upon the nature of the search and its level of intrusiveness. This must be balanced against the institution’s legitimate need to maintain security and order. In attempting to strike such a balance, the United States District Court for the Western District of New York, in Black v Amico (supra), held that the strip search of a visitor to a jail is so degrading and embarrassing (i.e., intrusive) that it should be permitted only when other less offensive measures would not render the facility secure.


Pursuant to section 1988, any sum the court, in the exercise of its discretion, elects to award as legal fees must be reasonable. In turn, what constitutes a reasonable award depends primarily upon the degree of plaintiffs success not only in terms of liability but also in terms of the level of damages awarded relative to the amount that was sought (see Farrar v Hobby, 506 US 103 [1992]). Thus, “the degree of plaintiffs overall success goes to the <mask> [of the legal fees award]” (id. at 114) and thus, “the most critical factor is the degree of success obtained” (Hensley v Eekerhart, 461 US 424, 436 [1983]). “Where recovery of private damages is the purpose of . . . civil rights litigation, a district court, in fixing fees, is obligated to give primary consideration to the amount of damages awarded as compared to the amount sought” (Farrar, 506 US at 114 [internal quotation marks omitted], quoting Riverside v Rivera, 477 US 561, 585 [1986]).


In Schwartz v Greenfield, Stein & Weisinger (90 Misc 2d 882), the court referred to the “obsolescence of the strict <mask> doctrine” in holding that an attorney who under*931took but failed to file and perfect security agreements was liable to a third-person lender who was damaged thereby. In part the court noted that (p 884) : “ ‘[w]ith the case of McPherson v. Buick Motor Co. [217 NY 382, 11 NE 1080 (1916)] the privity requirement began to assume less importance in one area of the law after another. The court began to recognize liability to third persons where the actor negligently rendered services which he should have recognized as involving a foreseeable injury to the third party’ ”. (Accord 45 ALR3d 1181, 1184-1185.)


. But, so far as appears, the company to which the offer was made *395did nothing of the kind. It was divested of its property and franchises by the foreclosure sale in 1874. The grading and completing of the road and, so far as appeal’s, the locating of the route between the points specified in the subscription paper were done by the new company. Between that company and the defendant there was no <mask>. The defendant’s offer was not made to the new company. The new company did not acquire the interest of the original company in the subscription paper. It succeeded to such property only, of the original company, as was covered by the mortgage and sold on the foreclosure.


This result is warranted notwithstanding the fact that petitioner was not a party to the trial. As subrogee, petitioner stands in place of Dykes, its subrogor. The issue in the personal injury litigation as well as the subsequent arbitration was identical — to wit, the liability of respondent’s insured. Both petitioner and its subrogor were interested in obtaining a judgment against respondent on the issue of liability, and petitioner’s interests were effectively represented at trial. Petitioner’s relationship as subrogee of Dykes is such that it can be reasonably said that the two are in “<mask>,” sufficient to bind petitioner by the prior judgment to which it was not a party of record (see, Watts v Swiss Bank Corp., 27 NY2d 270, 277). This situation would include “those who are successors to a property interest” (see, Watts v Swiss Bank Corp., supra). Thus, the doctrine of res judicata would apply to preclude petitioner’s claim for recovery of the amount of benefits it paid to Dykes.


Chief Judge Desmond, speaking of the <mask> rule, said: ‘ ‘ But the present rule which we are being asked to modify is itself of judicial making since our statutes say nothing at all about privity and in early times such liabilities were thought to be in tort [authorities omitted]. Alteration of the law in such matters has been the business of the New York courts for many years [authorities omitted].” (Greenberg v. Lorenz, 9 N Y 2d 195, 199-200; see, also, Badigian v. Badigian, 9 N Y 2d 472, 481.)


At this point still extant was the principle enunciated in Redmond v. Borden’s Farm Prods. Co. (245 N. Y. 512) that a dependent child for whom food was purchased by his mother could not claim <mask> of contract with the seller. And it was to correct this specific 1 ‘ injustice and impracticality ’ ’ that expressly motivated the Greenberg decision.


On principle and authority, then, the jury should not take into consideration the money received by the plaintiff, Jane C. Warner, from the insurance company. But, without reference to any adjudicated case, there are principles springing from the relations of the parties, and the statute creating the right of • action in favor of the plaintiffs, which forbid the consideration of any benefit elsewhere received. Jane G. Warner was entitled to the whole amount of the policy of insurance. It was for her-benefit alone; and it was secured by the payment of a premium to which the defendant did not contribute. The benefits growing out of the right of action here sought to be enforced, are not given to her by the statute, but are given to the widow and next-of kin, and do not arise upon any common law liability. They are, therefore, res inter alios acta. The case is very different from that which would be presented for an injury to a chattel, and *354it rests upon a statute, the object of which was to punish the wrongdoer who by his carelessness destroyed life. There is no <mask> between him and the insurance company, and the insurance company cannot repair the injuries done by the defendant. They cannot restore to the widow and next of kin of the deceased, the society, advice and protection which he could have afforded them, aside from the pecuniary losses incident to the deprivation which his death occasioned, and thus, either by analogy, or on principle even, the doctrine that an insurance company could be substituted for the deceased in this action, as in the case of Mason v. Salisbury, could not apply to this action. But, however that may be, the judge Was clearly right in refusing to charge the first of the defendant’s requests. The second request was not authorized by law. Fagan was engaged in removing the snow from the defendant’s house and by his express direction, when Mr. Warner was killed. It is. true that Fagan had askedCashan to help him, but this does not change the defendant’s responsibility. It is said, by Blackstone, (Yol. 1, p. 431, marginal paging), that “ a master is chargeable if any of his family layeth or casteth anything out of his house into the street or common highway, to the damage of any individual, or the common nuisance of his majesty’s liege people: for the master hath the superintendence and charge of all his householdand the following cases illustrate the doctrine that where the master has intrusted a servant with the performance of a service, it is no answer, in an action brought to recover damages resulting from the manner in which the service is performed, that the servant .acted amproperly in the discharge or performance of it.


Home improvement contractors working in Suffolk County are required to be licensed (Code of Suffolk County § 563-17). The purpose of the Suffolk County Legislature, in enacting such licensing requirements, was to enhance “the health, safety and general welfare of the consumers of Suffolk County” (Code of Suffolk County § 563-1). Here, however, the action is not against a “consumer,” which we interpret here to mean a homeowner, but, rather, against a licensed contractor, the entity in <mask> *22with the homeowners in the home improvement project at issue.


In Vrooman v. Turner (69 N. Y. 280) Judge Allen said : “ To give a third party who may derive a benefit from the performance of the promise, an action, there must be, first, an .intent by the promisee to secure some benefit to the third party, and second, some <mask> between the two, the promisee and the party to be benefited, and some obligation or duty owing from the former to the latter which would give him a legal or equitable claim to the benefit of the promise or an equivalent from him personally. It is true there need be no privity between the promisor and the party claiming the benefit of the undertaking, neither is it necessary that the latter should be privy to the consideration of the promise, but it does not follow that a mere volunteer can avail himself of it. A legal obligation or duty of the promisee to him will so connect him with the transaction as to be a substitute for any privity with the promisor, or the consideration of the promise, the obligation of the promisee furnishing an evidence of the intent of the latter to benefit him, and creating a privity by substitution with the promisor. A mere stranger cannot intervene and claim by action the benefit of a contract between other parties. There must be either a new consideration or some prior right or claim against one of the contracting parties, by which he has a legal interest in the performance of the agreement.”


The basic principles are well settled. “The doctrine of collateral estoppel bars ‘a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in <mask>, whether or not the tribunals or causes of action are the same.’ ” (Chiara v Town of New Castle, 61 AD3d 915, 916 [2d Dept 2009], quoting Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984].) Two conditions must be met: first, “the issue sought to be precluded [must be] identical to a material issue necessarily decided . . . in a prior proceeding,” and second, the losing party must have been afforded “a full and fair opportunity to contest this issue” in the prior proceeding. (Chiara v Town of New Castle, 61 AD3d at 916, quoting Jeffreys v Griffin, 1 NY3d 34, 39 [2003].)


As set forth in the above-quoted letter from the owner’s counsel, the only reason proffered for refusing to consent to the Sublease was because of a contemplated 24-hour, seven-day-a-week operation. Yet the owner subsequently leased the premises to Walgreen for the very same use contemplated by Duane Reade, with no limitation on the hours of operation. *678Prior to the surrender, Duane Reade, as a sublessee of Apple and thus not in <mask> with the owner, lacked the authority to enforce the Lease prohibition against an unreasonable refusal to consent. (See, Tamco Enters. v Mitsubishi Elec. Am., 190 AD2d 623 [1st Dept 1993]; Mogull Music Corp. v Madison-59th St. Corp., 162 AD2d 336 [1st Dept 1990].)


to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in <mask> with a party to the prior proceeding.’ ” (People v. Barragan (2004) 32 Cal.4th 236, 253.) The arguments here center on the first of the three elements. Chaudhuri’s argument conflates the issues involved in the administrative proceeding with the issues the trial court considered on his petition for writ of mandate. Indeed, in his briefing, Chaudhuri clouds the question by arguing that the trial court’s judgment operates as a bar to further proceedings by the Committee by explaining that “the claim to be decided in the second disciplinary hearing—whether Dr. Chaudhuri sexually harassed [E.B.]—is identical to the claim which was adjudicated in the first hearing.” But it is not the results of the first hearing that Chaudhuri attempts to use to bar a second hearing. It is the judgment on his writ petition. The trial court’s judgment on Chaudhuri’s petition for writ of mandate adjudicated only whether the evidence in the administrative record was sufficient to support the administrative findings, and not whether Chaudhuri had sexually harassed either of the complainants. The issues in the two proceedings were not identical. The trial court explained as much at the hearing in this matter: “My decision [on the first writ petition] was reviewing whether or not there was sufficient evidence below. And it’s not the same decision that the agency made.” The agency did not then and does not now challenge the trial court’s conclusion or issuance of a peremptory writ of


After the trial had ended, the California Supreme Court clarified that for the claim preclusion aspect of res judicata, a complete identity of parties was *671required; the requirement of the same party or its privy applies to both the party asserting the defense and the party against whom the defense is asserted. ( DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824-825, 189 Cal.Rptr.3d 809, 352 P.3d 378 ( DKN Holdings ).) Based on this clarification in the law, Cal Sierra moved for judgment notwithstanding the verdict, a new trial, and to vacate the judgment, contending <mask> had not been established. The trial court found the license agreement between Western Aggregates and Reed was sufficient to establish privity. The court reiterated that the case was one of derivative liability.


*844The doctrine of res judicata or claim preclusion dictates that in ordinary circumstances a final judgment on the merits prevents relitigation of the same cause of action in a second suit between the same parties or parties in <mask> with them. ( DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824, 189 Cal.Rptr.3d 809, 352 P.3d 378.) The doctrine of collateral estoppel or issue preclusion prevents "the relitigation of issues argued and decided *725in a previous case, even if the second suit raises different causes of action." ( Ibid. ) "Under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action." ( Ibid . )


This court has not been presented, and has not found, any authority to sustain the argument in the factual situation of the instant claim, that the third-party beneficiary Westgate must accept an offer by the promisor Capitol Hill to discharge the debt of the promisee SUNY. While <mask> may be found to exist here sufficient to allow the enforcement of the promise by Westgate, absent consent by the latter the court holds that it *614was not legally obliged to accept Capitol Hill’s offer to pay STJNY’s remaining rent dne.


Assuming arguendo that the McClendon class was not limited to persons whose property was held by the Property Clerk prior to the end of that litigation in 1993, the 1974 and 1993 decrees cannot be given preclusive effect here. The issues actually litigated and determined in McClendon (supra) differ from those now raised. (See also, O’Brien v City of Syracuse, 54 NY2d 353, 358.) McClendon found the prior procedure inadequate, inter alia, because it placed the burden of proof on the property owner instead of the City. McClendon did not afford petitioner, or anyone who can be considered in <mask> with him, a full and fair opportunity to litigate the issues raised here. (See, Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65; Restatement [Second] of Judgment § 27; 2 Chase, Weinstein-Korn-Miller, CPLR Manual § 25.03 [d] [rev 2d ed].) *454Fundamental fairness requires that the court consider these issues on the merits.


The question was raised during the trial, and is again raised now, on motion by the defendant Hot Shoppes, to the effect that Hot Shoppes cannot be liable here as a matter of law, because there was no <mask> of contract between the restaurant and the infant. The trial proceeded on the theory of breach of warranty. The defendant Hot Shoppes apparently does not seriously question the legal proposition of its liability to a contractual party if there was breach of implied warranty that food sold by it was fit for human consumption. The defendant argues, however, that the only contractual party here was the gentleman who ordered and paid for the ice cream. Defendant says that the infant is merely a third party, not within the contemplation of the contract, and therefore not protected by any implied warranty. Defendant in this connection cites a substantial number of cases including Chysky v. Drake Bros. Co. (235 N. Y. 468); Redmond v. Borden’s Farm Prods. Co. (245 N. Y. 512); Salzano v. First Nat. Stores (268 App. Div. 993); Gimenez v. Great Atlantic Pacific Tea Co. (264 N. Y. 390).


Such a theory cannot be upheld. Defendant, knew that plaintiff was the- auctioneer to conduct the sale. His name appeared in the advertisement annexed to the terms of sale, and the contract to pay the auctioneer’s fee, was for his benefit only, and not of Field, the referee. Such payment was one of the conditions of defendant’s purchase, and his promise in relation thereto, established a <mask> of contract between the plaintiff and himself (Bleecker v. Franklin, 2 E. D. Smith, 93; Muller v. Maxwell, 2 Bosw. 355).


The Workmen’s Compensation policy issued to Milnag by the State Fund constituted a contract between them imposed by statute (Workmen’s Compensation Law) for the benefit of Mil-nag’s employees. They are the only persons who could call on the State Fund to pay for injuries sustained by an employee. The State Fund, having issued its policy of Workmen’s Compensation Insurance, owed a duty to Milnag and to his employees. Even assuming, for the sake of argument only, that Leonora Jones was an employee of Milnag, and thus within the terms of the Workmen’s Compensation policy issued by the State Fund to Milnag, the claimant Zurich, upon the facts herein set forth, has failed to state a cause of action. There is no <mask> of contract between Zurich and the State Fund arising out of the policy of insurance. All that the State Fund agreed to do was to pay awards made to Milnag’s employees for injuries under the Workmen’s Compensation Law and to indemnify Milnag against the payment of such claims. The fact that Zurich stepped in and made itself liable for payment of the claim of Leonora Jones cannot constitute a subrogation of any claim Milnag might have against the State Insurance Fund.


New York authorities do not extend liability to an attorney whose negligence may bring harm to a third party with whom he has no <mask>, provided the charge is simple negligence. An attorney is not liable to a third party for acts performed in good faith and mere negligence on the part of the attorney is insufficient to give a cause of action to the injured third party. He is liable to a third party only when he is guilty of fraud or collusion or of a malicious or tortious act (3 N. Y. Jur., Attorney and Client, § 78; 7 C. J. S., Attorney and Client, § 52, subd. b; Matter of Cushman, 95 Misc. 9; Dallas v. Fassnacht, 42 N. Y. S. 2d 415).


"In order to establish the <mask> requisite to enforce a restrictive covenant, a party need only show that his [or her] property derives from the original grantor who imposed the covenant and whose property was benefit[t]ed thereby, and concomitantly, that the party to be burdened derives his [or her] property from the original grantee who took the property subject to the restrictive covenant" (Malley v Hanna, 65 NY2d 289, 291; see Shea v Signal Hill Rd. LLC, 172 AD3d 1604, 1606). "This 'vertical privity' arises wherever the party seeking to enforce the covenant has derived his [or her] title through a continuous lawful succession from the original grantor" (Malley v Hanna, 65 NY2d at 291-292). Where vertical privity has been established, a party's right to enforce a restrictive covenant "does not depend upon his [or her] demonstrating a common plan or scheme" (Malley v Hanna, 65 NY2d at 292); rather, "it is sufficient that the surrounding circumstances manifest the original grantor's intent that the covenant run with the land" (id.).


As a general rule ‘ ‘ a manufacturer * 6 * of personal property is not liable to third persons under an implied warranty, who have no contractual relations with him. The reason for this rule is that <mask> of contract does not exist between the seller and such third persons, and unless there be privity of contract, there can be no implied warranty. The benefit of a warranty, either express or implied, does not run with a chattel on its resale ”. (Chysky v. Drake Bros. Co., 235 N. Y. 468, 472, 473.) Although recently in Greenberg v. Lorenz (9 N Y 2d 195) it was held that not merely the individual buyer but all the members of a household benefit by a warranty as to food and household goods, it has not been held that a buyer or the members of his household may sue a manufacturer with whom the buyer had no contract.


Plaintiffs also assert claims based upon the defective design of the container, and the manufacture of a fuel with a dangerously low flash point. Such defective design claims are independent of the product’s labeling and, thus, are not preempted (see, Higgins v Monsanto Co., supra; Bingham v Terminix Intl. Co., 850 F Supp 516). It should also be noted that, since the elimination of <mask> to support an action for breach of implied warranty (UCC 2-318), there is little, if any, difference at present between an action for strict products liability and one for breach of implied warranty (see, Heller v U.S. Suzuki Motor Corp., 64 NY2d 407). Therefore, to the extent that plaintiffs’ implied warranty claims relate to the inadequate design of the container and the dangerously low flash point of the camp stove fuel, rather than to inadequate labeling or warnings, those claims survive. In arriving at this determination, we also take heed of the rule of interpretation that *139preemption clauses in a statute are to be narrowly construed and that matters beyond their scope are not preempted (Cipollone v Liggett Group, 505 US, supra, at 524).


These findings of <mask> and agency are significant. While this case was pending, a separate class action brought against, among others, GCA resulted in a final, court-approved settlement agreement. (Gomez v. GCA Production Services, Inc. (Super. Ct. San Bernardino County, 2014, No. CIVRS1205657 (Gomez ) ).) The Gomez settlement agreement contains a broad release barring settlement class members from asserting wage and hour claims such as those *267alleged here against GCA and its agents. The Castillos are members of the Gomez settlement class and did not opt out of that settlement.


But the bank owes no duty to the holder of a check drawn upon it, and may refuse payment (even though the drawer has ample funds on deposit), without being liable to an action by such holder. This is because there is no <mask> between the holder and the bank, and the latter does not become a party to the check until acceptance or payment by it (Ball on Nat. Banks, 265), nor does a check upon the general fund operate as an assignment fro tanto to the payee, unless it has been accepted by the drawee (Ib.). Money deposited with a bank ceases altogether to be the money of the person paying it in; it becomes the money of the banker, who is to return an equivalent by paying a similar sum to that deposited with him, when he is asked for it (Grant Law of Banking, 3 ed. 2). Hence it is said that the relation between a banker and his customer is that of debtor and creditor only (Id. 5).


With respect to their motion to dismiss, defendants contend that plaintiffs failed to state a cause of action against defendants because they have no <mask> with defendants. Defendants are not sponsors of the condominium offering plan for the medical office building and, furthermore, the hospital is not the owner of the medical office building. Next, defendants argue that plaintiffs do not have standing because there is no private right of action under the Martin Act.


No <mask> of contract existed between the parties originally insured and the reinsurers, even in case of the insolvency of the original insurers (Herckenrath v. Am. Mut. Fire Ins. Co. 3 Barb. Ch. 63). Under the ordinary construction of contracts of reinsurance, they impose upon the reinsured no obligation to pay the insured or to prove actual payment of the loss before he can call upon his reinsurer (3 Kent Com. 279, and cases cited in note s; Hone v. Mut. Safety Ins. Co. supra ; 1 Pars. on Mar. Ins. 300). “ When the loss has happened and been duly ascertained, the reinsurer must pay to the first insurer the amount of the loss within the policy, notwithstanding the first insurer has become insolvent, and can only pay in part. He must pay the entire sum reinsured, and has no concern with any arrangement between the first insured and his creditors ” (2 Kent Com. 279, note e). This contract of reinsurance having been made with express reference to the original policy of insurance, prescribing the time for payment of the loss thereby insured against, must be construed as merely fixing a like titne for payment of the pro rata loss to the reinsured. Such is its natural construction as a mere contract of reinsurance: the loss against which it insures is “ payable ” at the same time with the reinsured—not when the reinsured have actually made payment. Whatever ambiguity or uncertainty, if any, exists, is upon well recognized principles of construction, to be held the most strongly against the defendants as the contracting party. The terms used do not indicate with any plainness of intention, as against the rules of law above stated, that the payment to be made under it should be deferred until the reinsured had made actual payment of the whole loss. And, in my opinion, the clause in question has reference to the time which, by the original insurance, the North American were required to make payment of the loss, rather than to the circumstance that they had made such payment.


In Lansing v. Montgomery (2 Johns., 382), one joint trespasser relied upon a judgment in favor of another joint trespasser, as a defense to the action afterwards prosecuted against himself, and it was held to be no bar, for the reason that “ one who is not bound by cannot take advantage of an estoppel.” (Id., 383.) That case was analogous to the present one, for the liability of the corporation and of the trustee, was of a distinct and several nature, as much as that of joint tort-feasors. (Lawrence v. Campbell, 32 N. Y., 455.) Substantially the same rule was acted upon in Castle v. Brown (14 id., 329), where the judgment was only held binding upon the master, because he actually defended the action in which it' was recovered in the name of his servant. It was there declared that, upon the facts shown, the parties are to be regarded as the same; “ it is by no means true that in order to constitute an estoppel by judgment the parties on the record must be the same. The term has a broader meaning; it includes the real and substantial parties, who, although not upon the record, had a right to control the proceedings and appeal from the judgment.” (Id., 335.) In the present case the defendant could have done neither, in the action prosecuted by the plaintiff against the corporation. “ Under the term parties, in this connection, the law includes all who are directly interested in the subject-matter, and had a right to make defenses, or to control the proceedings and to appeal from the judgment; this right involves also the right to adduce testimony and to cross-examine the witnesses.” “ Persons not having these rights are regarded as strangers to the cause.” (1 Greenl. on Ev. [7th ed.], 654, § 523.) The term parties includes not merely those who are named as such in the action, but it extends to all who stand in <mask> with them, and that comprehends all who afterwards derive title to the subject-matter of the litigation, from or under one of the parties to the record (id., § 189), but it will not affect, or include an interest acquired previous to the commencement of the action. (Campbell v. Hall, 16 N. Y., 575.) Within this principle, there w^s no such privity between the defendant *276and the corporation as would affect him by a judgment against the latter, and, consequently, he cannot, on any such relation, avail himself of its protection. (Lawrence v. Campbell, 32 N. Y., 455.)


The subtenant further argues that the actions of a landlord, including the acceptance of rent, can revive the landlord-tenant relationship (DiGiglio v Tepedino, 173 AD2d 763 [2d Dept 1991]). In this case there was no indication that the tenancy would be reinstated. In addition, the movant does not have <mask> of contract with the landlord, and therefore, even if checks were accepted, the attempted payments could not revive a tenancy because a tenancy never existed between the movant and the petitioner.


" ' "The concept of <mask> ... refers 'to a mutual or successive relationship to the same rights of property, or to such an identification in interest of one person with another as to represent the same legal rights....' " ' " ( Roberson , supra , 226 Cal.App.4th at p. 1511, 173 Cal.Rptr.3d 66, italics omitted.) "Over time, courts have embraced a somewhat broader, more practical concept of privity. ' "[T]o maintain the stability of judgments, insure expeditious trials," prevent vexatious litigation, and "to serve the ends of justice," courts are expanding the concept of privity beyond the classical definition to relationships " 'sufficiently close to afford application of the principle of preclusion.' " ' [Citation.] For example, more recently our Supreme Court explained the basic tenets of privity in broader terms: 'As applied to questions of preclusion, privity requires the sharing of "an identity or community of interest," with "adequate representation" of that interest in the first suit, and circumstances such that the nonparty "should reasonably have expected to be bound" by the first suit. [Citation.] A nonparty alleged to be in privity must have an interest so similar to the party's interest that the party acted as the nonparty's " ' "virtual representative" ' " in the first action.' " ( Castillo v. Glenair, Inc . (2018) 23 Cal.App.5th 262, 276-277, 232 Cal.Rptr.3d 844.) "Put another way, privity, ' "as used in the context of res judicata *257or collateral estoppel, does not embrace relationships between persons or entities, but rather it deals with a person's relationship to the subject matter of the litigation." ' " ( Id. at p. 277, 232 Cal.Rptr.3d 844, italics omitted.)


Furthermore, there is no <mask> between the drawer and the collecting bank and a fortiori between the drawer and the impleaded defendant Kirk and the drawer owes to these parties no duty of vigilance. (Fallick v. Amalgamated Bank of New York, 232 App. Div. 127; City of New York v. Bronx County Trust Company, 234 id. 244; Manufacturers Trust Company v. Harriman Nat. Bank T. Co., 146 Misc. 551; American Exchange Nat. Bank v. Yorkville Bank, supra.)


In addition, although AriesOne admitted owning these leases for a period of time, as we noted above, the Energy Assignment does not include several of these leases. Hence, for these leases, MJR has not established an unbroken chain of title from Energy to AriesOne. Since an unbroken chain of title has not been shown, MJR has not established that there is <mask> of estate between Energy and AriesOne, or that AriesOne is charged with notice of its ROFR. In addition, MJR has not produced any summary judgment evidence showing that AriesOne had actual notice of its *707ROFR. Therefore, genuine issues of material fact remain on these issues.


The determination of respondent Modell’s appeal to the Court of Appeals on June 9, 1982 was followed by two successive motions in the Civil Court to vacate the October 30, 1981 final judgment of possession on the basis of newly discovered evidence. Both motions to vacate were ultimately denied and in May 1990 petitioner moved for a trial of its use and occupancy claim. Modell responded with a motion to dismiss the claim and the motion was ultimately submitted to this court for determination. One of the grounds for the motion, in which respondent The Camera Barns joins, is lack of <mask> between petitioner and respondent undertenants. As to the ground, Modell and The Camera Barns contend that the lack of privity, as a matter of law, bars recovery of use and occupancy against them in a summary proceeding.1


The decisions of our own courts, above cited, call this transaction a contract, and treat it as such. Then the law is clear, that by the employment of under agents or servants, for his own convenience or to perform part of w]iat he has contracted to do, the employer becomes civilly responsible to those with whom he contracts or deals in his business. The general principle of Lord Holt has always been cited with approbation, though the correctness of its application to a political office was denied, that “ where a trust is put in one person, and he whose interest is intrusted is damnified by the neglect of such as that person employs in the discharge of that trust, he shall answer to the person damnified.” 12 Modern R. 490. The same dpctriue is thus summed up by judge Story, from a long succession of authorities : “ It is a general doctrine of law, that the principal is held liable to third persons in a civil suit for the frauds, *231deceits, misrepresentations, torts, negligences, and other malfeasances or misfeasances and omissions of duty of his agent in the course of his employment, although the principal did not authorize or justify, or indeed know of such misconduct, or even if he forebade them or disapproved of them.” Story on Agency, ch. 17, § 452, and authorities cited in note 3. “ The maxim is,” says Lord Kedyon, “ Respondeat superior—The principals are responsible for the acts of the servants in those things that respect their duty under them, though not answerable for things that do not respect their duty.” 8. T. R. 531. This rule sums up the dotrine with great force, clearness and precision. Thus the carrier is liable for the negligence of his agent, by which goods committed to his care are damaged. So the ship ower is liable to the shipper^ for damages caused by reason of the neglect or misconduct of the master or mate. .“This liability,” says Judge Story, “ extends not only to the injuries and wrongs of the agent immediately employed in a particular business, (as in this case to the Merchant’s Bank itself,) but also to the injuries and wrongs done by others who are employed by that agent under him, or loith whom he contracts for the performance of the business; for the liability reaches through all the stages of the service.” Story on Agency, § 454, -and cases there cited in note. It is this distinction, on which I have already insisted as founded in the reason of contracts, between the undertaking to perform any thing, and the mere receiving a delegation of authority to act for another, which reconciles many decisions evidently equally just in themselves, but apparently clashing in words and conflicting in authority. I include among these, in addition to the class of cases already cited or referred to, those in which persons dealing or contracting with an agent or contractor, and trusting to his credit, have endeavored to charge his principal, with whom, however, they themselves had no <mask> ; see for instance, the two cases in 6 Taunton, 147, 148. If it be not a mere representative agency, but a contract or undértaking to do the business, the original principal is answerable; and for the same reason he is too look to the immediate contractor with himself, and not to the inferior *232and distant under contractors or agents, for defaults injurious to bis own interest.


The Court of Appeals in Jenkins v. Moyse (254 N. Y. 319, 324) spoke as follows: “ The test of whether this loan is usurious is whether it was in fact made to the plaintiff. Doubtless at times loans are made in fact to an individual though in form they are *411made to a corporation to hide the fact that the lender has exacted an illegal rate of interest from the real borrower ’ The record shows that the loan was in fact made to Sales and not to the individual Fassoulis. Hence the defense of usury was not sustained. The court having reached the conclusion that the secured loan was not usurious as a matter of fact and law, the question of whether the instant defendants were in <mask> with the secured loan is immaterial.


“ The lessee does hereby acknowledge <mask> between itself and the holder of any mortgage or mortgages now or hereafter placed on the lessor's interest in the said premises and on the land and building of which the said premises are a part, or upon any buildings hereafter placed upon the land upon which the leased premises form a part and to which this Lease is subordinate, and in the event of a foreclosure of any such mortgage or mortgages, as aforesaid, then this Lease, without the execution of any further documents shall be deemed to have been assigned by the lessor to any such purchaser or purchasers at the foreclosure sale.” (Emphasis supplied.)


At the close of trial the defendant made eight motions to dismiss: the first motion for failure of the plaintiff to prove *138prima facie case; the second that the plaintiff herein was not the proper party plaintiff and, therefore, the actions should be dismissed; third, that the Department of Transportation was not the legal owner of Republic Airport and, therefore, the action should be dismissed; fourth, that the action of imposing said landing fees at Republic Airport with respect to the Metropolitan Transportation Authority (M.T.A.) was ultra vires and, therefore, the landing fees were not proper and, therefore, the action should be dismissed; fifth, that there was no <mask> of contract between the defendants and the M.T.A.; sixth, that the landing fees were discriminatory, in that other airports allegedly similarly situated did not have such landing fees; seventh, that the statute does not permit the M.T.A. to appoint agents — only contractors and people in like categories; and eighth, that the landing fees are a violation of the defendants’ constitutional rights to travel.


Republic Petroleum establishes that both the original contracting party and the assignee would have standing to bring a breach of contract suit against the defendant. Consequently here, Vernco as original contracting party had standing to sue Hood and Nelson because those parties were in <mask> and Vernco suffered the alleged injury. Vernco's assignment of its claims to the Bank as part of the Foreclosure Agreement also gave the Bank potential standing to bring the claim as well, since the Bank thereby obtained a property interest in the claim. However, the separate issue of whether Vernco had the actual authority to bring suit on the Bank's behalf in light of the agreement's scope and what was actually transferred is a capacity issue that was waived by Hood and Nelson's failure to file a timely verified objection on that ground as required by TEX.R.CIV.P. 93(1).13


"Collateral estoppel, an equitable doctrine, is based upon the general notion that a party, or one in <mask> with a party, should not be permitted to relitigate an issue decided against it * * * As this doctrine has evolved, only two requirements must be satisfied. First, the party seeking the benefit of collateral estoppel must prove that the identical issue was necessarily decided in the prior action and is decisive in the present action * * * Second, the party to be precluded from relitigating an issue must have had a full and fair opportunity to contest the prior determination.” (D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990].) In discussing the flexible nature of the doctrine, in Staatsburg Water Co. v Staatsburg Fire Dist. (72 NY2d 147, 153 [1988]), it was stated:


From this brief view of authorities in relation to sureties and bail, it clearly appears that an agreement to give time to the principal is void without good consideration. The plea of the defendant, therefore, treating it as one setting up an agreement by the plaintiff to give time to the principal, is defective in not setting forth a consideration for the agreement. Such an agreement did not prevent the plaintiff from issuing a co. so. and arresting the principal, nor the bail from surrendering him at any time. It is also farther defective in not setting forth that the agreement was made without the <mask> and knowledge of the bail.


“Persons who may maintain proceeding— Landlord or lessor — <mask> is required “The relationship of the landlord to the respondent must involve both privity of contract, based on the agreement between the parties, and privity of estate, based on the transfer of interest in the real property. (New Amsterdam Casualty Co. v National Union Fire Ins. Co. of Pittsburg, Pa., 266 NY 254, 194 N.E. 754, 99 A.L.R. 216 [1935]). “In other words, an owner may maintain a summary eviction proceeding against a respondent if the owner entered into a lease or other occupancy agreement with the respondent, or if the owner succeeded to the interests of one who had such an agreement.” (See e.g. 3414 KNOS LLC v Bryant, NYLJ, Jan. 12, 2011 at 25 [Civ Ct, Bronx County] [proceeding brought by owner, not leaseholder, of apartment was jurisdictionally defective and not amendable].) Based upon the foregoing, this proceeding is dismissed without prejudice to renewal because there is no landlord/ tenant relationship between petitioner and respondents.


“[T]he term <mask> does not have a technical and well-defined meaning” (Watts v Swiss Bank Corp., 27 NY2d 270, 277 [1970]). Rather, it “is an amorphous concept not easy of application” (D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 *873[1990]).4 “It includes those who are successors to a property interest, those who control an action although not formal parties to it, those whose interests are represented by a party to the action, and possibly coparties to a prior action (Restatement, Judgments, §§ 81-90)” (Watts v Swiss Bank Corp., supra, 27 NY2d at 277).


*989The cases cited by the respondent assignee to the contrary are not applicable. In Halsey v. Winant (258 N. Y. 512), it was held that the judgment creditors could not secure cancellation of a consummated usurious transaction without offering to pay the lender the sum advanced with legal interest. The rule is well established that where one in <mask> with the borrower seeks to take affirmative action against the lender and to compel him to give up certain security which he holds for the payment of the debt, such person must restore or offer to restore the sum advanced by the lender with legal interest. (Wheelock v. Lee, 64 N. Y. 242; Rice v. Schneck, 189 App. Div. 877, affd. 228 N. Y. 561; Lubetkin v. Stern & Co., 223 App. Div. 770.) But in the pending proceeding the entire fund is in the hands of the executors subject to the conflicting claims of the parties. The question whether the assignee is entitled to the amount advanced with interest, even if the transaction be usurious, is one of the issues presented for determination in this proceeding.


The defendants’ moving affidavit asserts that the contract was made with Boss, that the plaintiffs never acquired any rights under the contract or bill of sale, that the plaintiffs are not in <mask> with the defendants but are strangers to the *836transaction, and that therefore they have no basis for bringing the suit. Clearly, however, nothing else being shown, where a vendee of a businss transfers his interest therein to another, the transferee may enforce a covenant not to compete which was contained in the original sale agreement. (Francisco v. Smith, 143 N. Y. 488.) Even if the defendants ’ affidavit were sufficient in this respect, the plaintiffs’ opposing affidavit and exhibits raise a triable issue of fact as to whether the plaintiffs are the successors of Boss. The defendants’ reply affidavit by their attorney George Meade does set forth facts which of themselves would seem to show that the action for reformation has no merit. He states that Boss knew that the covenant in regard to the potted plants, and flowers, etc. was not in the written agreement when he signed it, and therefore that it was not left out of the written agreement through the inadvertence or mistake of Boss. This would normally defeat a claim for reformation. However, in Brandwein v. Provident Mut. Life Ins. Co. (3 N Y 2d 491) it was held that where a party intended that a certain provision be inserted into a written contract, but was persuaded to sign it even though he knew it did not contain the provision by the fraudulent oral representation of the other that he intended to perform the requirements of such a provision though not incorporated in the writing, the remedy of reformation was available.


This has been interpreted by some to mean that, unless the covenant is of such a nature as to “run with the land,” m the view of a court of law, knowledge of its existence will not, in a court of equity, bind an assignee. This conclusion was emphatically repudiated in Tulk v. Moxbury (2 Phillips, 775-779). The lord chancellor accordingly said, “With respect to the observations of Lord Brougham m Keppell v. Bailey, he never could have meant to lay down that' this court would not enforce an equity attached to land by the owner, unless under such circumstances as would maintain an action at law. If that be the result of Ins observations, I can only say that I cannot coincide with it.” The proposition which was established m the case was" that a covenant between a vendor and purchaser, on the sale of land, that the purchaser and his assigns shall use or abstain from using the land in a particular way - will be enforced in equity against all subsequent purchasers with notice, indepen dently of the question whether it be one which runs with the land so as to be binding upon subsequent purchasers *332at law. Tulk v. Moxbury has been confirmed repeatedly in this respect, and has become settled law, Lord Brougham’s dictum as interpreted in that case having been uniformly received with marked disfavor in the English courts (De Mathas v. Gibson, 4 De Gex & Jones, 276; Wilson v. Hart, Law Rep. 1 Chan. 363; Colt v. Pawle, 4 Id. 654; Whatman v. Gibson, 9 Sim. 196; Cole v. Lewis, 5 De G. M. & G. 1; Western v. McDermot, L. R. 2 Ch. App. 12; Parker v. Nightingale, 6 Allen, 341). The spirit of the rule is well explained by Lord Justice ENight Bruce in De Mathas v. Gibson, supra. He says: “ Reason and justice seem to prescribe that, at least as a general rule, where a man by gift or purchase acquires property from another with knowledge of a previous contract, lawfully and for a valuable consideration made by him with a third person, to use and employ the property for a particular purpose and in a specified manner, the acquirer should not, to the material damage of the third person, in opposition to the contract and inconsistently with it, use and employ the property in a manner not allowable to the giver or seller, from whom he derives his own title ” (p. 282). In Parker v. Nightingale, the whole subject is carefully considered by Bigelow, Ch. J., and the distinction between the rule in law and inequity clearly pointed out. It is there said: “ A court of chancery will recognize and enforce agreements concerning the occupation and mode of use of real estate, although they are not expressed with technical accuracy, as exceptions or restrictions out of-a grant, nor binding as covenants real running with the land. Nor is it at all material that such stipulations should be binding in law, or that any <mask> of estate should subsist between parties m order to render them obligatory, and to warrant equitable'relief in case of their infraction. . . .” So long as an owner retains a title in himself, his covenants and agreements respecting the use and enjoyment of his estate will be' binding upon him personally, and can *333be specifically enforced in equity. When he disposes of it by grant or otherwise, those who take under him cannot equitably refuse to fulfill stipulations concerning the premises of which they had notice. It is upon this ground that the courts of equity will afford relief to the parties aggrieved by the neglect or omission to comply with agreements respecting real estate after it has passed by mesne conveyances out of the hands of those who were parties to the origiual contract. A purchaser of land, with notice of a right or interest in it existing only by agreement with his vendor, is bound to do that which his grantor had agreed to perform, because it would be unconscientious and inequitable for him to violate or disregard the valid agreements of the vendor in regard to the estate of which he had notice when he became the purchaser (Burrows v. Richards, 8 Paige, 351. See, also, Whitney v. Union Railway Co., 11 Gray, 364). In applying the principles to the case at bar, it will be found that the defendant, having had full notice of the arrangement between McMaster and Cummings, is hound in conscience not to avail himself of the privilege of the agreement without bearing the burdens. His claim, in substance, is that he can rest his beams on another man’s wall and pay nothing for it to any one, for if the burden of the covenant does not, either in law or in equity, follow the land, he hable to no one. The same general course of reasoning shows that the benefit of the covenant in equity no longer appertains to McMaster, but enures to the plaintiff. When McMaster conveyed, the entire wall passed to his grantee, together with the easement. When the defendant makes use of the wall, he takes not McMaster’s property (which has already passed from him), but the plaintiff’s. He cannot avail himself of the agreement to take the wall without being equitably bound to pay him who is the owner at the time he appropriates it. This point was decided in this court in Brown v. Penz, 1 Ct. App. Dec. *334227. That was an action in equity in which it was held that the- equitable benefits and obligations of a party-wall agreement, such as is now in question, attached to the assignees of the respective parties. It is said by the reporter to have been disposed of by an equally divided court. Our brother, Judge Hiram Gray, who was a member of the court when the decision was rendered, dissented from the prevailing view, and remembers that it was a decision by a majority. It is binding as an authority and is founded on good sense and convenience. It is a- matter of common knowledge in the city of Hew York that such agreements -are much resorted to by professed builders and others, and great practical injustice would be done if the party who has incurred a large expenditure to build an entire wall should be deprived of all remedy against an assignee of a contiguous proprietor with whom a well understood contract was made. It is believed that a decision that the assignees of the original contracting parties are not within the scope of the contract, either in law or equity, would be an unwelcome surprise to the profession. Assuming it now to be established that the covenant in the case at bar binds the assignee, the next inquiry is as to its true scope and meaning. The judge at the trial found that the agreement was that Cummings, or his assignees, should have the right to use the wall as a party-wall, and that, when he or they used the same, he or they should pay McMaster, his heirs or assigns, one-half of the value of said wall. The terms of the unexecuted written agreement were, “ if the party of the second part, etc., shall at any time use the said wall, he or they shall then pay to the party of the first part the value of one-half of such part as shall be used. McMaster testified that- the oral agreement was that Cummings, etc., was to pay before he used the wall, not after he had elected to use it; that his experience as a builder had always been to that effect, and that Cummings was not to put a chisel into the wall until *335he had paid for it. He further testified that the proposed written agreement was drawn to carry out that understanding, by one of his clerks. Cummings was not sworn. The plaintiff insists that the finding of the judge was unsustained by evidence, and ■ was, • therefore, erroneous in point-of law.


‘ ‘ There seems after all to be little if any difference between a liability based upon an implied warranty and a positive duty *46based upon public policy. Both operate irrespective of negligence, and the same facts will support either. Peculiar as it may seem, however, the courts require <mask> for recovery in cases resting on the theory of warranty but not in those resting on the theory of tort liability. This distinction is questionable ’ ’. (7 Calif. L. Bev. 360, 364.)


The only point for the present discussion, is, the correctness of the judge’s charge. This must be understood in reference to the facts of the case. The lease was proved *and admitted to be in the handwriting of the defendant. If, therefore, any alteration was made, it must have been made by the defendant himself, and not by a stranger. Had the judge said, that if the lease (supposing it to be for a term of years and therefore a chattel,) had been altered by Payn, though in a part not material, yet it would thereby become void and inoperative as respects Payn’s right to recover upon it, no fault could possibly have been found with the charge. The law was thus laid down in Pigot's case, (11 Co. 27.) That was an action on a bond. It was there resolved, “that when any deed is altered in a point material, by the plaintiff himself, or by any stranger, without the <mask> of the obligee, be it by interlineation, addition, rasing, or by drawing of a pen through a line, or through the midst of any material word, the deed thereby becomes void,” “ So, if the obligee alters the deed by any one of the said ways, although it is in words not material, yet the deed is void; but if a stranger, without his privity, alters the deed by any of the said ways in any *73point not material, it shall not avoid the deed.” So in Shepherd’s Touchstone, 69: “ If the alteration be made by the party himself that owneth the deed, albeit it be in a place not material, and that it tend to the advantage of the other party, and bis own disadvantage, yet the deed is thereby become void.” This doctrine is referred to and adopted in numerous authorities. (4 Com. Dig. by Day, p. 294; 15 John. 297.) The ancient doctrine on this subject is supposed by the plaintiffs’ counsel to have undergone some modification in modern times. Platt, justice, in Jackson ex. dem. Malin v. Malin, (15 John. 297,) expresses a doubt whether the act of a stranger should prejudice a party, though the altertion be in a part material; and in Rees v. Overbaugh, (6 Cowen, 746,) we held that it should not. Yet no doubt is any where expressed, that a deed is rendered void by an alteration in favor of the party making it.


The Article fifth trust funds are presently in the possession of the American Funds Service Company, a California corporation which has apparently been acting as custodian of such funds following their improper removal from this State without the permission of the court (see, SCPA 710 [4]). The decision of this court in imposing a constructive trust directed the "depository presently in possession of the funds” to turn over such assets to the trustee of the Article sixth trust to whom they are payable in default of the exercise of Blanche’s power of appointment. Presently a proposed decree and counterdecree have been submitted, the estate of Blanche S. O’Rourke contending that it is improper to direct the American Funds Service Company (American) to return the funds to this State by payment to the Article sixth trustee since American is not a party to these proceedings. However, the doctrine of collateral estoppel may apply to an individual even though not one against whom the judgment was rendered but who is someone in <mask> with a party (North Fork Hous. Guild v Mackay, 97 AD2d 433). In proceedings in California, both Fred D. Montgomery, as executor of the estate of Blanche S. O’Rourke, and American Funds Service Company stipulated that "American Funds Service Company, whose parent company is The Capitol Group, Inc., is a stakeholder only, and neither entity has an interest in the account in question.” It is seen therefore that American Funds Service Company has absolutely no interest in the outcome of this controversy and was not a necessary party to this proceeding, but at all times was merely an agent of the parties and consequently is bound by the decision of this court as are the parties themselves (Hughes v United Pipe Lines, 119 NY 423). Furthermore, the court enjoins Fred Montgomery and his agents and attorneys from in any way interfering with the transmission of these funds from California to New York and payment to the trustee of the Article sixth trust except upon a stay properly obtained.


In their first issue, the Isaacs argue that there were "apparent defects of title that required the trial court not to assert jurisdiction." In their third issue, the Isaacs assert that CitiMortgage tendered no evidence that it was entitled to treat the Isaacs as tenants at sufferance and that it was not in <mask> of contract with the Isaacs in regard to a lien instrument. We address these issues together.


Thus, for purposes of <mask>, " '[t]he emphasis is not on a concept of identity of parties, but on the practical situation. The question is whether the non-party is sufficiently close to the original case to afford application of the principle of preclusion.' " ( Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223, 1236-1237, 49 Cal.Rptr.3d 892 ( Alvarez ).) Put another way, privity, " 'as used in the context of res judicata or collateral estoppel, does not embrace relationships between persons or entities, but rather it deals with a person's relationship to the subject matter of the litigation .' " ( Cal Sierra , supra , 14 Cal.App.5th at p. 674, 223 Cal.Rptr.3d 506.)


Thus, a prescriptive easement is “no more than an unopposed, continuous trespass [on another’s property] for 15 years.” McDonald v Sargent, 308 Mich 341, 344-345; 13 NW2d 843 (1944). “If no single period of adverse use amounts to the 15-year statutory period, a party claiming a prescriptive interest may tack the possessory periods of their predecessors in interest to aggregate the 15-year period of prescription if the claimant can show <mask> of estate.” Marlette Auto Wash, LLC, 501 Mich at 203 (quotation marks and citation omitted).2