In determining the other questions that arise under the assignment, it will be necessary also to refer to the law respecting the assignment of a lease by a lessee ; that kind of transfer being the nearest in point of analogy to an assignment of the right acquired by contract to the use of a patented machine, enjoyed upon the condition of paying a stipulated sum annually, or what is known as a royalty. The effect of the assignment of a lease by a lessee is, that the assignee takes all the interest which the lessee had by the lease, subject to the performance of such covenants in it as are connected with the demise. (Thompson v. Rose, 8 Cow. 266 ; Norman v. Wells, 17 Wend. 146, 147 ; Verplanck v. Wright, 23 id. 509, 510 ; Allen v. Culver, 3 Denio, 294-299 ; Williams v. Bosanquet, 1 Brod. & B. 238.) Under the Revised Statutes, the assignee has the benefit of any agree*203ment contained in the lease, whether express or implied, and the same remedy for its enforcement that the lessee would have had (1 R. S. 747, § 24) ; and by the common law, as the assignee is bound by all covenants connected with the land, he is also entitled to the advantage^ of them, if the)' are broken, and may bring an action, therefor. (Lewes v. Redge, Cro. Eliz. 863 ; Kane v. Sanger, 14 Johns. 93 ; Martin v. Baker, 5 Blackf. 232.) If he accepts the assignment, he becomes liable to the lessor for the performance of the covenants, and the lessor may recover the rent from him in an action of debt, founded upon the <mask> of estate, or in an action of covenant upon the privity of contract respecting the estate (2 Platt on Leases; Tongue v. Pitcher, 3 Lev. 295 ; Thursby v. Plant, 1 Wm. Saund. 241; Allen v. Bryan, 5 B. & C. 512) ; or sue the assignee and the lessee jointly for it. (Bailiff of Ipswich v. Martin, Cro. Jac. 411; Com. Dig. Det. E.) The reason given why the lessor, after an assignment, should, for the recovery of the rent, have a remedy by distress, an action of debt, or covenant against the assignee, and also an action against the lessee upon his covenant, is that the assignee may assign the lease to a beggar, or to one who may suffer the house to remain empty, so that there may be nothing in it upon which to distrain, and therefore, as was -said, the lessee “ should not be allowed to prevent, by his own act, the remedy which the lessor had against him by his own contract.” (Pitcher v. Tovey, 4 Mod. 75 ; Tomlin’s Law Dict.—Privies.) He consequently continues liable upon his .contract until the end of the term. (Walton v. Crowly, 14 Wend. 63.) If the duration of the lease is optional, as if it is given for four years or twenty, if the lessee so elects, or where both concur; or if it is for so many years, with the right, on the part of the lessee or lessor, or of one of them only, to determine it at an earlier period, upon giving notice to the other (Dann v. Spurrier, 3 Bos. & P. 399 ; Goodright v. Richardson, 3 T. R. 462; Goodright v. Nichols, 4 M. & Sel. 30), this right necessarily passes to the assignee, in whom is vested all the interest in the demise which the lessee had under the lease. Thus, a cove*204nant of renewal may be enforced, by the assignee in equity (Piggot v. Mason, 1 Paige, 412); or he may maintain an action in his own name against the lessor for the breach of such a covenant. (Moor on Conditions, p. 159 ; Hyde v. The Dean, &c., of Windsor, Cro. Eliz. 553 ; Lametti v. Anderson, 6 Cow. 307,308; Bennett v. Vansyckel, 4 Duer, 462. As respects a condition that the lessee shall not assign without the express consent of the lessor, it is, in the first place, a kind of restraint that the law does not favor (Church v. Brown, 15 Ves. 265); and as the court said in Crusoe v. Brighy (2 Wm. Bl. 767), in respect to such restraints “ very easy modes have always been countenanced for putting an end to them.” Thus, the acceptance of rent by the lessor after knowledge of the breach of a condition not to assign, is regarded as tantamount to a license and discharges the condition (Lloyd v. Crispe, 5 Taunt. 255, 256 ; Taylor on Landlord and Tenant, §§ 410,411, 451; Smith on Land, and T. 119), and where the condition is once discharged, no consent or license is thereafter required in making any further assignment. (Dakin v. Williams, 17 Wend. 457 ; Siefke v. Koch, 31 How. 383 ; Brummel v. Macpherson, 14 Ves. 173 ; Taylor’s Land, and T. § 410.) Where the consent is to be given in writing, a parol consent will not discharge the condition; but if the landlord, knowing of the assignment, accept rent after the forfeiture has been incurred, the forfeiture is waived and the condition gone. (Ray v. Harrison, 2 T. R. 430, 431.) There is a distinction between a condition and a covenant not to assign. The breach of a condition works a forfeiture; whilst for the breach of the covenant the remedy is an action for damages. (Paul v. Nourse, 8 B. & Cres. 480 ; Dickey v. McCulloch, 2 W. & S. 100.)


An assignment in violation of a restriction in the lease is not void. It is voidable and passes an estate subject to the consequences of the breach. Therefore, unless the landlord chooses to void the assignment, the assignment is valid, <mask> of estate results, and the assignee is liable thereunder. (Liebmann’s Sons Brewing Co. v. Lauter, 73 App. Div. 183.)


The plaintiff alleges that she was injured on May 10, 1960 when a gas range manufactured by R. C. A. exploded. The range, according to the first cause of action, was purchased in *8071954 by the plaintiff’s husband as her agent from “ a dealer in such appliances located in the Township of Huntington, County of Suffolk, State of New York.” It is further alleged in the first cause of action that B. C. A. expressly and impliedly warranted “as fit for use * * * and * * * of merchantable quality”. There are no allegations to show any <mask> of contract between B. C. A. and the plaintiff’s husband; nor are there any factual allegations to show the provisions of an express warranty.


However, there is no need to reach any decision, with respect to the elimination of <mask>, as this court finds that the postpurchase actions by defendant, gave rise to a contractual privity relationship with plaintiff, which overcame any original purchase gap in privity. At the time of purchase plaintiff was issued defendant’s “Temporary Registration Card” by defendant’s authorized dealer. Thereafter, defendant forwarded to plaintiff an “Owners Registration Card”, signifying proof of ownership, date of purchase, product usage “pleasure”, model number, serial number, registration number, dealer/code, entitlement to warranty coverage, etc. All of this was incidental to the purchase of defendant’s engine, and entails contractual and service .commitments by defendant to plaintiff, the ultimate purchaser.


But the later English cases qualify the rule, in the last case, so far, as, in substance, to hold that the factor may not permit another to hold the goods, under any delegation of authority whatever, so as to establish any <mask> between such other person and the consignor, or confer any right upon Mm, to commissions or lien. (Vide Sally v. Rathbone, 2 Maule & Selw. 298 ; Cross on Lien, 264, and cases cited.)


When the defendants conveyed the premises to the plaintiff, all <mask> of estate between them and the tenant ended, and their right to enforce any agreement, not broken on the part of the *387tenant, canxe to an end (Seidlitz v. Auerbach, 230 N. Y. 167, 175); their rights were then transferred to plaintiff, their grantee, and the deed operated as an assignment of their rights, including their rights to indemnity from the funds held by them as security. (Markantonis v. Madlam Realty Corp., 262 N. Y. 354, 362, 363.)


The existence of a duty to use due care is "[t]he threshold element of a cause of action for negligence." ( Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397, 11 Cal.Rptr.2d 51, 834 P.2d 745 ( Bily ); see also Centinela, supra, 1 Cal.5th at p. 1012, 209 Cal.Rptr.3d 280, 382 P.3d 1116.) Generally, a defendant owes no duty to prevent purely economic loss to third parties under any negligence theory. ( Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 58, 77 Cal.Rptr.2d 709, 960 P.2d 513 ( Quelimane ) ["Recognition of a duty to manage business affairs so as to prevent purely economic loss to third parties in their financial transactions is the exception, not the rule, in negligence law. <mask> of contract is no longer necessary ... [but] public policy may dictate the existence of a duty to third parties"].) As *122the Supreme Court reaffirmed in Centinela, "[t]he test for determining the existence of such an exceptional duty to third parties is set forth in the seminal case of Biakanja , supra , 49 Cal.2d at page 650, 320 P.2d 16, as follows: 'The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are [1] the extent to which the transaction was intended to affect the plaintiff, [2] the foreseeability of harm to him, [3] the degree of certainty that the plaintiff suffered injury, [4] the closeness of the connection between the defendant's conduct and the injury suffered, [5] the moral blame attached to the defendant's conduct, and [6] the policy of preventing future harm.' " ( Centinela, supra, 1 Cal.5th at pp. 1013-1014, 209 Cal.Rptr.3d 280, 382 P.3d 1116.)


Plaintiffs also attempt to show that <mask> does, in fact, exist between the executors and the defendant. In support of this position, the plaintiffs rely upon Kramer v Belfi (106 AD2d 615 [2d Dept 1984]). That case, however, did not sustain a cause of action involving negligence in the drafting of the will by the defendant. Instead, it allowed a cause of action between the executor and the defendant attorney who was advising the executor in the administration cf the estate after the decedent’s death. The negligence involved in that case was the attorney’s advice or lack thereof in the administration of the estate after the decedent died. It was the estate, via the executor, who requested legal advice on estate administration. *944This is separate and apart from any negligence in the drafting of the will. The fact that the same attorneys handled both facets of the situation is irrelevant. This distinction is enough to set that case apart from the present case. The negligence asserted in the present case is not in the administration of the estate but in the drafting of the will.


*1058To avoid payment of the plaintiff’s claim for compensation during this period the defendants rely upon those cases which have held that persons who are not parties to the lease are not liable to the lessor for rent in the absence of <mask> of contract or estate which would create a landlord-tenant relationship (People v. New York World’s Fair, 1939, 259 App. Div. 739, affd. 286 N. Y. 587), and that no recovery for use and occupation can be had unless there had been a prior relationship of the landlord and tenant or an express agreement to pay for use and occupancy (14 Second Ave. Realty Corp. v. Steven Corp., 16 A D 2d 751, affd. 12 N Y 2d 919; Castle v. Armstead, 168 App. Div. 466). The defendants have, however, overlooked those cases which hold that an action will lie even against a trespasser to recover the reasonable value of the use and occupation of property and the simple rules of equity and justice which must prevail (City of New York v. Fink, 130 Misc. 620; De Camp v. Bullard, 159 N. Y. 450; Bunke v. New York Tel. Co., 110 App. Div. 241, affd. 188 N. Y. 600; Goelet v. National Sur. Co., 249 N. Y. 287; Nims v. Mayor, 59 N. Y. 500).


Instead of resolving the apparent conflict between the Williamson and Bullmore decisions on the applicability of the “innocent successor” exception to imputation and in pari delicto, this court views both cases as distinguishable on their facts. Here, the trustee is seeking to recoup overpayments from former limited partners, whereas in Williamson and Bullmore the claims were against the auditors and sought tort damages. The identity of the defendant was significant in Bullmore. Justice Ramos concluded that “adopting an innocent successor exception here for the benefit of the Fund’s investors would be inconsistent with the well-settled principle that a negligence claim against a corporate accountant belongs to the corporation-client, unless there is <mask> between the accountant and the nonclient claiming harm.” (Bullmore, 20 Misc 3d at 678.) Thus, the liquidators were seeking damages from the auditor for the benefit of the fund, which was completely controlled by the offending managers, and not for the benefit of the innocent investors. The court finds, at least under the circumstances of this case, that the defense of in pari delicto does not prevent the trustee, as an innocent successor, from seeking to recoup overpayments to benefit innocent investors.


The second predicate for according preclusive effect to the Supreme Court determination upon the liability issue is the master and servant relationship between the State and Ms. LeClair. In the case of Wolf v Kenyon (242 App Div 116), Mr. Wolf suffered injuries as the result of a motor vehicle collision between himself and an automobile operated by Mr. Kenyon. Mr. Kenyon was operating the automobile in the course of performing his duties for his employer William A. Verkleir. Mr. Wolf brought an action against Mr. Verkleir under the doctrine of respondeat superior to recover for his injuries and the jury returned a verdict of no cause of action. Mr. Wolf then brought a second action against Mr. Kenyon to recover for the same injuries. In deciding to dismiss the second claim upon the defense of res judicata the Appellate Division (at 117) held: “Strictly speaking, master and servant are not in <mask> but where the relationship is undisputed and the action is purely derivative and dependent entirely upon the doctrine of respondeat superior, it constitutes an exception to the general rule.”


In the same article, at page 936 under “ Conclusion,” it is stated: “ The merit of Justice Traynor’s approach in Greenman is that he has expressed with clarity the loss-distribution rationale for imposing strict liability upon the manufacturer of a defective product and has used it to construct a conceptual framework specifically designed to realize that end. Not only has he recognized that this strict liability must be grounded in tort rather than in contract, but he has taken care not to assimilate the elements of the new cause of action to those of other torts having incompatible rationales. The bystander benefits from the explicit abandonment of a contractual basis because the <mask> requirement is abolished without an apologetic necessity for substituting some other relationship with the product or its buyer as a prerequisite to recovery. Moreover, his careful creation of a new delict to accord with the *487principle of loss distribution seems to eliminate the hazard to the bystander of the requirement that injury to a person in the plaintiff’s position be foreseeable at the time of sale.”


I understand Chief Justice Eyre, in Collins v. Martin, (1 Bos. & Pull. 651.) as meaning to say, that there must be a consideration paid when the bill is received. He says, “ if' it can be proved that the holder gave no value for the bill, then, indeed, he is in <mask> with the first holder, and will be affected by every thing which would affect the. first holder.” And in the case of Joy v. Campbell, (1 Sch. & Lefroy, 346.) Lord Redesdale, referring to Lord Bolinghrolce's case, in the discussion of which a case was cited, which he mentions with approbation, where an executor transferred part of the assets, for the avowed purpose of paying his own debt, in which case, the person receiving the assets was held liable, for, by this sort of dealing, the person concurs in a devastavit, as the value he gives for the assets is of a nature which it is impossible should be applied to the purposes of the administration. JThe administrator had the legal ownership ; he had a right to sell the goods; but as the purchaser paid him nothing, but took the goods on account of his debt against the administrator, equity would not allow him to retain them. The case, in principle, is Very analogous to the present.


*604The jury was instructed that the mere fact that the needle broke did not in and of itself establish negligence, but that they could find the doctor liable only if they found such negligence in the maintenance, care or use of the needle from the time of its purchase by him up to and including the time of the injection as caused it to break. If it found such negligence on his part, it was to render a verdict against him and in favor of defendant supplier. But, if it did not, thereby leaving as the only possible cause of the occurrence the delivery to the doctor of a defective needle by his supplier, it should then render a verdict against the supplier on plaintiff’s cause of action against that defendant for breach of warranty. (The court was mindful of the limitations imposed by the rule of <mask> in breach of warranty actions, but was of the opinion that patients, for whose use hypodermic needles are purchased by their doctors, belong in the same category as members of the family or employees of purchasers, for whose benefit as direct intended users of the product the privity rule has in recent cases been relaxed; in any event, that issue was submitted, subject to reservation on the motion to dismiss.)


*758Finally, this court notes that although lack of <mask> is no defense to a cause of action based upon strict tort liability (Codling v Paglia, 32 NY2d 330; Victorson v Bock Laundry Mach. Co., 37 NY2d 395) it is a legitimate defense to a products liability action based on breach of warranty (Martin v Dierck Equip. Co., 43 NY2d 583, 589-590; Titlebaum v Loblaws, Inc., 64 AD2d 822) and plaintiff does not dispute the fact that they had no contract with the defendants with respect to the concrete walkway in question.


Sosa also points out that before the probate court granted CES's motion for summary judgment, it signed a judgment declaring heirship that concluded Sosa was Howard's common-law spouse. But the heirship proceeding was uncontested. Because the issue of informal marriage was not fully and fairly litigated in the heirship proceeding, and CES is not in <mask> with a party to that proceeding, the heirship judgment has no preclusive effect. See Buster v. Metro. Transit Auth. , 835 S.W.2d 236, 237 (Tex. App.-Houston [14th Dist.] 1992, no pet.).


As stated in Fox v. Fox , 247 Ark. 188, 444 S.W.2d 865 (1969) : The theory [of estoppel] is that the marriage is not made valid by reason of the estoppel but that the estopped person may not take a position that the divorce or latter marriage was invalid. .... [T]he defendant by reasons of his conduct will not be permitted to question *580its validity or the divorce; so far as he is concerned, he and the plaintiff are husband and wife. 247 Ark. at 199, 444 S.W.2d 865. In the present case, it was the decedent who initiated the [marriage] of himself and the appellant, and it was at his insistence that she attend the divorce hearing. The evidence shows that the appellant relied, in good faith, on the validity of Bill's divorce from Brenda and relied in good faith on the validity of her marriage to Bill for almost seven years. On our de novo review, Taylor v. Hill , 10 Ark. App. 45, 661 S.W.2d 412 (1983), we find that Bill was at least culpably negligent in not determining that his divorce decree was final before initiating his [marriage] with the appellant and that he would have been estopped to deny that the decree was final. See J.F. Hasty & Sons v. Hampton Stave Co. , 80 Ark. 405, 97 S.W. 675 (1906). By this holding, we do not declare the validity of common-law marriage in Arkansas. A legal common-law marriage cannot be entered into in Arkansas, nor can one be created by estoppel, but equity can, and we hold that it does, under the facts in this case, require that the parties be estopped from denying the validity of a marriage. Fox , supra .... We hold that the estate and the heirs of Bill Brown are estopped from challenging the validity of Bill's marriage to the appellant because they stand in <mask> to the decedent. Because Bill himself would be barred from challenging the validity of the marriage, his heirs and his estate are in no better legal position to challenge the validity of Bill's marriage to the appellant. Brown , 28 Ark. App. at 129, 771 S.W.2d at 313-14.


As to fraud and undue influence, objectants allege that the propounded instrument and any subscription and publication thereof was obtained by fraud and undue influence practiced by a designated person, named as a legatee, or by some other person or persons acting in concert or <mask> whose names are unknown. Allegations that the paper offered for probate was procured by fraud and undue influence practiced upon decedent have been held sufficient. (Matter of Hone, 226 App. Div. 715; Matter of Heughes, 144 Misc. 922.) Although it has been stated that the names of the persons claimed to have exerted the undue influence or fraud and the times and places when and where they were accomplished should also be alleged (Matter of *814Mullin, 143 Misc. 256, affd. 240 App. Div. 996, affd. 265 N. Y. 491), the courts have generally regarded as sufficient allegations of fraud and undue influence in general terms, and permitted the names of the persons claimed to have exerted the fraud or undue influence, or alleging that such persons were unknown, to be furnished by a bill of particulars. In any case, the objections filed herein allege the requisite facts with respect to the person or persons claimed to have exerted the alleged fraud and undue influence. The motion to strike out subparagraphs 1 and 3 of paragraph First of the objections is denied. (Matter of Broch, N. Y. L. J., July 27, 1956, p. 6, col. 7.)


That branch of defendants’ motion to dismiss the second cause of action against defendants for breach of implied warranty under the Warranty Act is granted as to Chrysler and denied as to Adzam.4 New York does not recognize a breach of implied warranty claim in which economic losses have been sustained absent <mask> of contract (see, Gordon v Ford Motor Co., 239 AD2d 156 [1st Dept 1997]). Despite plaintiff’s attempts, privity between him and Chrysler cannot be based on the fact that Adzam is Chrysler’s sales agent. Here, the language in the sales and service agreement between Chrysler and Adzam clearly provides that there is no principal/agent relationship between them and “under no circumstances is either party to be considered the agent of the other” (see, Goodrich reply affidavit, exhibit A, sales and service agreement 36).


By contrast, a series of decisions at the trial and Appellate Term levels, in the First Department have held that, despite the absence of <mask>, a third party using or occupying real property may nevertheless be liable to the owner for use and occupation of the premises (City of New York v Fink, 130 Misc 620 [Sup Ct, NY County 1927], supra; Christatos v United Cigar Stores Co., 144 Misc 322 [App Term, 1st Dept 1932]; Matter of Radway, 144 Misc 352 [Sur Ct, NY County 1932]; Oboler v Miller, 146 Misc 509 [App Term, 1st Dept 1933], supra; Rand v Mintz, 69 Misc 2d 1055, affd 72 Misc 2d 621 [App Term, 1st Dept 1973], supra; see also, Gasoff Realty Corp. v Berger, 188 Misc 622, 626 [App Term, 1st Dept 1947, Hammer, J., dissenting opn], supra).


The question of whether a landlord serving a proper notice can impose liability upon a hold-over for a greater rental than that reserved in the lease, the term of which had expired, where the tenant dissents from the increase mentioned in the landlord’s notice, although referred to in counsel’s brief, is not directly involved in the present case. This seems to be the effect of the dictum of the justice who decided the case of Machson v. Katz, N. Y. L. J., Jan. 11, 1921. It may be observed that the authority for the annunciation of that rule is the case of Lasher v. Heist, 126 Ill. App. 82. A reference to that case indicates that it is based upon the law as laid down in the earlier case of Hunt v. Bailey, 39 Mo. 257, in which the following is stated as the principle: “ If the tenant manifests his dissent from the terms proposed for increased rent, then no <mask> of contract *516will "be created for the increased rent; and if he holds over, it will he considered on the terms of the lease by which he originally gained possession. In such case, the remedy of the landlord would 'be ousting the tenant from the possession, under the statute, if he objected to a continuance of the occupation according to the terms and conditions of the lease.”


Plaintiff’s position as urged upon the court is that Maryland Casualty is a stranger to this action, that the release was never intended to release plaintiff’s right against the corporate defendants and that there is no <mask> between Maryland Casualty Company and the alleged tort-feasors, County of Onondaga and Syracuse Constructors. The corporate defendants were not a party to any of the negotiations between the plaintiff and Maryland Casualty Company. They were total strangers to it and Maryland is not a party to this proceeding.


Persons not parties who have knowledge of the injunction may be bound by the injunction providing they are in <mask> with a party, such as officers or agents * c servants of a party acting in collusion with the party. (28 NY Jur, Injunctions, § 172.) This is so even if the initial process and injunction order were improperly served on the named party (Daly v Amberg, supra). It is noted in the instant case that service of the temporary restraining order and preliminary injunction was made upon the parties by service upon their attorneys. CPLR 6313 (subd [a]) authorizes the granting of a temporary restraining order without notice. CPLR 6313 (subd [b]) provide§ that a temporary restraining order be served in the £3asrj3 manner as a summons unless the court orders otherwise. tjTnlike the ordinary ex parte proceeding for a temporary restraining order, however, the . parties herein, other than Lloyd, were served with notice of the application for both the temporary restraining order and. preliminary injunction and if the parties have had such notice and an opportunity to be heard "no reason appears why the order cannot be served in the manner of any other interm^TaSe order — ordinarily by serving it with a notice of entry' fy mail upyn the defendant’s attorney”. (14 Standard Cff Prac Service, FIvisory Comm;, Notes to CPLR 6313, <\p 93; see, also, 7A Weinstein-Korn-Miller, NY Civ Prac,/par 6313.06; 12 Carmody-Walt 2nd, FT Practice, § 78:78; r»f. Puro v Puro, supra.) The tekipoirr.ry restraining order and the preliminary injunction wero therefore properly served on the parties. It is noted that none of the parties, except Lloyd, has raised any objection as to proper servjce of the injunction order (CPLR 5104), but just as to timeliness of service. It is further noted that to the extent that the date of the temporary restraining order and shipment *870of paintings are the same, those paintings are not included as violative of the restraint.


The plaintiffs claims against Accurate sound in negligence. Accurate owed no duty to the plaintiff as the contract between Tilcon and Accurate contained “no provision specifically creating an obligation to plaintiff as a member of *228the general public.” (Haigler v City of New York, 135 AD2d 362, 363 [1st Dept 1987].) Even if the plaintiff had been lawfully present on the premises, plaintiff would not be entitled to recover absent <mask> of contract. (Buckley v I.B.I. Sec. Serv., 157 AD2d 645 [2d Dept 1990] [security company not liable where security guard armed only with “walkie talkie” refused to intervene when plaintiff was injured in physical confrontation with defendant].) Accordingly, Accurate’s motion for summary judgment on the plaintiffs’ claims is granted.


McKinney’s Consolidated Laws of NY, Book 1, Statutes § 94 requires that courts give effect to the plain and literal meaning *964of language contained in legislative enactments. The plain language of CPLR 3215 (g) (3) permits consideration of a default motion, without notice to the defendant, where there is an additional mailing of the summons in an appropriately marked envelope, and where the action is based upon the nonpayment of a “contractual obligation.” The civil penalty sought by the plaintiff as a result of the defendant’s violation of Administrative Code § 270.106 (12) is not a “contractual obligation,” but rather, a statutory obligation of general applicability not borne of any <mask> between the parties.


With respect to the contention of the respondents that they are third-party beneficiaries of the regulatory agree*430ment: “New York follows the nearly universal rule that a third person may, in his own right and name, enforce a promise made for his benefit even though he is a stranger both to the contract and to the consideration. New York also follows the rule that the contract must have been intended for the benefit of the third person in order to entitle him to enforce it. Finally, New York follows the prevailing modern rule that there is no need for any consideration moving from the third person, any <mask> with him, or any obligation to him.” (22 NY Jur 2d, Contracts, § 271 et seq., pp 129-130, citing 17 Am Jur 2d, Contracts, §§ 302, 304, 308.)


In order for the defendant to avail itself of the defense that the injury was caused while doing stevedoring work and that it was due to the <mask> or negligence of the owner or managing officer, both of which causes defendant asserts to be excepted risks under the policy, it was incumbent upon the defendant to affirmatively plead and establish that the injury was incurred from a cause within the scope of these exceptions.


The plaintiffs in Bily lost their investments in a company. They sued the company's auditors for purely economic losses. The Bily majority never mentioned Rowland. It noted the absence of <mask> was not an analytical impediment and immediately recited the Biakanja factors.6 ( Bily, supra, 3 Cal.4th at p. 397, 11 Cal.Rptr.2d 51, 834 P.2d 745.) The majority *124examined only the foreseeability element, however, and concluded the mere presence of a foreseeable risk of injury to third persons, was not "sufficient, standing alone, to impose liability for negligent conduct." ( Id. at p. 399, 11 Cal.Rptr.2d 51, 834 P.2d 745.) In arriving at this conclusion, the five-justice majority held: "Even when foreseeability was present, we have on several recent occasions declined to allow recovery on a negligence theory when damage awards threatened to impose liability out of proportion to fault or to promote virtually unlimited responsibility for intangible injury." ( Id. at p. 398, 11 Cal.Rptr.2d 51, 834 P.2d 745.) The majority then observed, "An award of damages for pure economic loss suffered by third parties raises the spectre of vast numbers of suits and limitless financial exposure" ( id. at p. 400, 11 Cal.Rptr.2d 51, 834 P.2d 745 )7 and provided the *590following example: "One frequently used illustration of the need to limit liability for economic loss assumes a defendant negligently causes an automobile accident that blocks a major traffic artery such as a bridge or tunnel. Although defendant would be liable for personal injuries and property damage suffered in such an accident, it is doubtful any court would allow recovery by the myriad of third parties who might claim economic losses because the bridge or tunnel was impassible." ( Bily, supra, at p. 400, fn. 11, 11 Cal.Rptr.2d 51, 834 P.2d 745.)


A subtenant is not in <mask> of contract or privity of estate with the landlord (Stewart v Long Is. R.R. Co., 102 *950NY 601; Century Paramount Hotel v Rock Land Corp., 68 Misc 2d 603) and thus is not liable to the landlord for performance of any of the convenants of the major lease (Tefft v Apex Pawnbroking & Jewelry Co., 75 AD2d 891). The sublessee’s obligation is to the sublessor, who under common law and the specific language of the last sentence of subdivision 2 of section 226-b, remains personally liable to the landlord under the main lease.


Plaintiff relies primarily upon the statement in the majority opinion of the Court of Appeals in Goldberg v. Kollsman Instrument Corp. (12 N Y 2d 432, 436) that: 11 A breach of warranty * * * is not only a violation of the sales contract out of which the warranty arises but is a tortious wrong suable by a noncontracting party whose use of the warranted article is within the reasonable contemplation of the vendor or manufacturer.” However, the characterization of the alleged breach of warranty as a “ tortious wrong ” was not made to sustain jurisdiction under CPLR 302 (subd. [a], par. 2). Rather it was intended to furnish a logical basis for obliteration of the old requirement of ‘‘ <mask> of contract ” as an element of a cause of action for breach of warranty in the sale of personal property. For in the Goldberg case, the court permitted suit to recover damages for the death of one of the passengers in the crash of an airplane against the manufacturer of the airplane for breach of warranty of fitness.


But where, as in the case under consideration, there is no <mask> or connection between the new party and the original defendant, where he may not know, and has no interest to support "the title of the new party, it seems to me that it would he a very unjust rule which would oblige the new party to abide by the testimony taken while he was a stranger to the suit, and would prevent his producing witnesses to support the title he sets up.


The <mask> subsisting between landlord and tenant, will not authorize the tenant to have surveys made of the lands he holds from him, so as to bind the interest of the landlord. But if the survey is of land not in *503Ms tenure, it is an interference without even a pretence of right. The land he held as tenant might have been in another town or another county, and there is nothing in the verdict to attach it to the land in question.


Inasmuch as each complaint alleges a good cause of action in negligence, it is not necessary to pass upon the causes of action based on a breach of warranty set forth in the pleadings. It may be appropriate, however, to mention that such an action may not be maintained in the absence of <mask> of contract between the parties thereto. (Chysky v. Drake Bros. Co., 235 N. Y. 468; Campo v. Scofield, 301 N. Y. 468, 471.) Unlike the actions pleaded against defendants Helene Curtis Sales, Inc. and Occhino — both of which contain allegations that the named defendant sold to the plaintiff — there is nothing in the complaint against Cassalia, the wholesaler, to indicate any privity between him and the plaintiff. However, the court does not pass upon the sufficiency of the warranty causes of action at this time.


“crucial inquiry focuses upon the juncture at which the relationship between the party to the first action and the person claimed to be his or her privy is established. In the assignor-assignee relationship, <mask> must have arisen after the event out of which the estoppel arises. Hence, an assignee is deemed to be in privity with the assignor where the action against the assignor is commenced before there has been an assignment” (id. at 486-487 [emphasis added]). The reasoning for this determination is set forth in the very next sentence: “In that situation, at the time the assignee succeeded to the rights of the assignor . . . the assignee is charged *73with notice that his rights to the assignment are subject to [a] competing claim” (id. at 487).


11 A similar rule exists in tort actions where a servant who was the immediate actor is sued on his personal liability for negligence. The action results in a judgment for defendant. Plaintiff then sues the master. There is no <mask> between a master and servant except in the rare instances where the master directs the servant’s acts. (Castle v. Noyes, 14 N. Y. 329.) If the former did not control the acts of the latter at the time the transaction occurred, and his instructions were to act with care, the master’s liability depends upon the doctrine of respondeat superior. The liability is purely of a derivative or secondary character. In such cases the action is barred by the previous judgment in favor of the servant. (Snyder v. Trumpbour, 38 N. Y. 355; Pangburn v. Buick Motor Co., 211 id. 228; Hein v. Sulzberger & Sons Co., 175 App. Div. 465; New Orleans, etc., R. R. Co. v. Jopes, 142 U. S. 18; Bigelow v. Old Dominion Copper Co., 225 id. 111, 127.)


There is a class of cases of which Lawrence v. Fox (20 N. Y, 268) is a good illustration, which holds that where one person, for a valuable consideration, makes a promise to another for the benefit of a third, that third person may maintain an action on the promise; but the Court of Appeals has recently decided in the case of Vrooman v. Farner, not yet reported, that “ to give a third party who may derive a benefit from the performance of the promise a right of action there must be, 1st. An intent by the promisee to secure some benefit to the third party; and, 2d. Some <mask> between the two, the promisor and the party to be benefited, and some obligation or duty owing from the former to the latter which would give him an equitable claim to the benefit of the promise or an equivalent from him personally. There must be a sufficient consideration passing between the promisor and his immediate promisee, and then the third person must adopt the promise and then bring himself into privity with the promisor, but not otherwise. If there is no consideration, the promise is void as in all other cases.”


It is suggested, however, that there cannot be a joint judgment for damages against all the defendants. That is probably so. There is no <mask> of contract between the under-tenants and the plaintiff, and there cannot be a recovery against them of damages for the breach of the lessees’ contract. But I cannot see any difficulty in pronouncing separate judgments. The power to do so is in express terms given by the Code (§§ 118, 274), and is constantly exercised by the courts even in actions at law.


While the recital by the corporation in the consent and acceptance that it 1 ‘ makes no representation as to the physical condition of the apartment ’ ’ is relevant to an action for fraud and misrepresentation, a nuisance may exist although nothing whatever has been said about it. Moreover, the acceptance by plaintiffs of the premises “as is ” appears in the contract between them and the Greens, which is of no avail to the defendant corporation which was neither a contracting party, in <mask>, nor a third-party beneficiary. (Lorillard v. Clyde, 122 N. Y. 498; Atlantic & Pacific Wire & Cable Co. v. Duberstein Iron & Metal Co., 136 N. Y. S. 2d 736.) Further, representations or statements by one party or the other as to the condition of the apartment cannot bar a claim for a condition arising outside the apartment.


Courts have addressed <mask> with respect to defendants who, like MLLF, were agents and attorneys and, like SPS, were mortgage servicers. In Kimball v. Orlans & Associates , 651 Fed. Appx. 477, 481 (6th Cir. 2016), the Court of Appeals for the Sixth Circuit barred the plaintiffs' claims against Orlans & Associates, a law firm that served as Chase's agent and attorney in connection with foreclosures. The Sixth Circuit held that "[t]he Attorney Defendants are also in privity with Chase concerning mortgage foreclosure by virtue of their position as foreclosure counsel." Id. Similarly, in finding that a mortgage servicer acts as the agent of the mortgagee to effect collection of mortgage payments, the First Circuit noted that "it will be a rare case in which those two parties are not perfectly identical with respect to successive suits arising out of a single mortgage transaction." RG Fin. Corp. , 446 F.3d at 187. This is not one of those rare cases.


Here, the undisputed material facts show that MLLF was acting as attorney for Chase and was Chase's appointed successor trustee to foreclose on Topchian's property. The undisputed material facts also show that SPS became the sub-servicer of Topchian's loan under a 2013 Limited Power of Attorney. Topchian has not alleged that either MLLF or SPS acted in any other capacity in their dealings with him. Therefore, both MLLF and SPS were in <mask> with Chase and are identical to Chase for purposes of res judicata. Point V also is denied with respect to MLLF and SPS.


In the case at bar, plaintiff has made a sufficient factual demonstration of defendants’ awareness that Penvest was going to use the financial statements for the purpose of loaning money to Etna and understood that Penvest was relying thereon. This satisfies the requirement of showing the functional equivalent of <mask> necessary for a malpractice action against an accountant. However, having cleared this hurdle, plaintiff has failed to overcome the obstacle of submitting evidentiary detail that the compilation financial statement was, in fact, negligently prepared. Conspicuous by its absence is any affidavit by an accountant or other similar expert sufficient to raise a triable issue as to whether defendants’ conduct departed from the level of care required of an accountant rendering a compilation in such circumstances (see, Spitzer v Ciprut, 80 AD2d 891 [2d Dept 1981], lv denied 54 NY2d 603 [1981]; Amendolare v Piontkowski, 118 AD2d 529 [2d Dept 1986]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The conclusory affidavit by plaintiff’s attorney (who is not an accountant) stating what plaintiff "will prove”, and that "[attaching a compilation” cover letter does not absolve them of the liability they undertook on this particular transaction, and that "[i]t is beyond credibility” that this court will accept *778defendant Ross’ statements; and that "Something had to have been said”; and that defendants “should not be allowed to use the technical language contained in a cover letter * * * they prepared to shield themselves from liability”, is more appropriate for a brief or for a summation before a jury. However, for purposes of a motion for summary judgment, it is insufficient and is of no probative value. Since plaintiff has failed to demonstrate the existence of any factual issues by submitting evidence of probative value, that branch of the motion seeking summary judgment dismissing the second cause of action is granted and it is dismissed.


This provision of the statute was made for the exclusive benefit of the wife to prevent her from being controlled in the disposition *408of her property, by her husband, and secured to her the right of acting with complete and perfect freedom in the disposition of her property rights. And if she did not, but on the contrary acted under the compulsion of her husband, it' was for her benefit that the provision was made that her estate should not pass without this acknowledgment. She, and those claiming under her, might, where this certificate was required to be made, and not in fact made, reclaim or recover the property, attempted to be conveyed without it. But neither of the two defendants, against whom the verdict was directed, stand in this relation to this property. The defendant Brady, who was in its possession, was there under a lease executed to him by John Townshend on the 15th of July, 1874., The only title which the lessor appears to have acquired was by virtue of a deed executed to him by Bushnell Stevens on the 30th day of October, 1868. The grantor in this deed is not shown to have acquired any right or interest to the property under Mrs. Pool, or any party claiming to derive title through her deed or otherwise. The other defendant, Lockwood, was made a party as a claimant in reversion, or by way of remainder under the authority of section 1503 of the Oode, and had no greater interest. He derived his title in part under a deed executed to him by William A. Cunningham on the. 21st of November, 1882, and in part under Robert L. Roe, the grantee of J ohn Townshend. These parties were all strangers to the title, apparently claiming the property adversely to it, and they were, therefore, not in a position to object that Mrs. Pool had not parted with her title to the property by the deed executed and delivered by her, and for a valuable consideration to Johnson. They stood in no <mask> with her or with either of the persons through whom the plaintiffs derived their title to this property, and were not in a condition to defeat that title by means of this informality, if in fact it was such, in the execution and delivery of this deed. The law certainly will not tolerate a mere stranger, without right, in seizing and taking possession of the property of others where his power to do so is exclusively dependent upon a mere informality in the legal title to which no person through whom it has been derived, or through whom it may hare passed, has presented the slightest objection. As long as no actual claimant of the title, representing the person executing the deed, *409without strict conformity to tbe law, denies the right of the grantee, mere strangers should be precluded from presenting the objection.


To the defendants’ argument that the first and second causes are insufficient because there is no <mask> between .the parties and that plaintiffs arc at most incidental beneficiaries whom there was no intention by the parties to the contract to benefit, plaintiffs respond that they are not suing on that contract (although .the complaint says that they are) but on a different oral contract made at the time the roadway was conveyed to Westbury Park Industries, Inc.


“[t]he doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in the prior action or proceeding, and decided against that party or those in <mask>, whether or not the tribunals or causes of action are the same” (Breslin Realty Dev. Corp., 72 AD3d at 263). Here, respondent’s subrogor and petitioner litigated, in an earlier court proceeding, the very same claim heard by the arbitrator. Specifically, a court heard the very same facts relating to subrogor’s claim that petitioner was liable for her injuries. A jury evaluated these facts and made the determination that someone other than petitioner was 100% liable for subrogor’s injuries. Hence, the claim brought by respondent in the arbitration, standing in the shoes of subrogor, arose out of the same factual transaction and had been fully litigated and determined by a court prior to the arbitration hearing. The arbitrator’s decision to not give preclusive effect to a final determination made by a court was irrational (Matter of Social Servs. Empls. Union, Local 371 v City of N.Y., Dept. of Juvenile Justice, 82 AD3d 644 [1st Dept 2011]; Motor Veh. Acc. Indem. Corp. v Travelers Ins. Co., 246 AD2d 420 [1st Dept 1998] [based on the principle of res judicata, an arbitrator exceeds his power by conducting a hearing and making an award premised on the same claim as a prior award]; see also Matter of Pinnacle Envt. Sys. [Cannon Bldg. of Troy Assoc.], 305 AD2d 897 [3d Dept 2003] [second arbitration was barred by the doctrine of res judicata as it involved the same parties and precisely the same issues]; Matter of State of *710N.Y. Off. of Mental Health [New York State Correctional Officers & Police Benevolent Assn., Inc.], 46 AD3d 1269 [3d Dept 2007]; Matter of New York Tel. Co. v State Farm Ins. Co., 137 Misc 2d 376 [Sup Ct, NY County 1987]). At bar, since the claim against petitioner had been litigated and a court had rendered a final judgment after jury verdict, by not giving this final judgment and verdict res judicata effect, the arbitrator disregarded applicable rules of law.


But the right of this plaintiff to maintain an action against these defendants is very earnestly attacked by their attorney herein, principally upon the ground that there is no “ <mask> of contract ” between his clients and this plaintiff. This brings ' up what I regard as perhaps the most serious point in this case. It is true that the appeal bond was not in form given to this plaintiff nor did his name appear therein; but I am not prepared to decide that, at least indirectly, it was not given for his benefit. “ Privity of contract ” may, I think, involve more than the mere question of whether or not somebody’s name may appear in a writing. In this case the appeal bond, which as Schedule A is made a part of the complaint, was in the usual form, really in the form of an undertaking, and does not run to anybody in particular. Among other things, its concluding paragraph is to the effect that the sureties “ ateo undertake that if the judgment so appealed from, or any part thereof, is affirmed, or said appeal is dismissed, the appellant will pay the sum recovered or directed to be paid by the judgment or the part thereof as to which it shall be affirmed.” This bond was doubtless executed at the instance and for the benefit of the defendant Harrison, and for the purpose of preventing his wife, the plaintiff, through her attorney, the plaintiff in this action, from collecting the judgment which had been awarded against him. I repeat that the bond did not in form run to her alone, or to her at all, and I think it should be held to redound to the benefit of any one interested in that situation, that is, in the *389collection of that particular judgment. The bondsmen made it impossible to collect that judgment then; and in order to do so they agreed, generally, that if it was affirmed in whole or in part, they would pay the judgment. The case is, therefore, to be differentiated from those cases in which a bond or undertaking runs to some particular person as in the case of Leary v. New York Central R. R. Co. (212 App. Div. 689). To hold otherwise would be' to rob the attorney of any protection he has, and any right which he has, in a judgment which he has obtained by his efforts, in every case in which an appeal is taken.


The city’s claim of lack of <mask> is inappropriate. Having undertaken to changing a welfare recipient’s rent allotment to two-party status and promising, in writing, to advise landlord of any change in that status, the DSS is liable to landlord for any loss incurred by landlord in reliance thereon. To say there was no privity is to close our eyes to the truth. At the very least, landlord is a third-party beneficiary of that part of the relationship between DSS and the welfare client. (Lawrence v Fox, 20 NY 268.) In addition, we think the city is liable to landlord in tort. One who, by its wrongful conduct induces another to act to its detriment should be answerable in damages to the aggrieved party. It is basic tort law that one who induces another to breach its contract is liable to the wronged party regardless of privity. The tests for the tort of inducing breach of contract are "(1) the existence of a valid contract * * * (2) the defendant’s knowledge of that contract; (3) the defendant’s intentional procuring the breach * * * (4) damages”. (Israel v Wood Dolson Co., 151 NYS2d 1, 5.) In this case, at the very least, we have (1) a month-to-month lease (contract), (2) knowledge of the lease by the defendant, as shown by two-party checks, (3) a unilateral termination of two-party checks without notice to landlord, and (4) damages in the amount sued for.


These cases do not speak to the issue tendered by McLean, “ Breach of leasing agreement ”, although they do point up the absence here of the two elements of proof just noted. A lessor or bailor for hire impliedly warrants that the subject of the lease or bailment is fit for its intended purpose during the term of the lease or bailment. Breach results in liability for the damages sustained by the lessee or bailee. (Covello v. State of New York, 17 Misc 2d 637; Hoisting Engine Sales Co. v. Hart, 237 N. Y. 30; Gambino v. Lucas & Co., 263 App. Div. 1054.) An employee of the lessee or bailee may also recover even though, as to him, no <mask> exists. (La Rocca v. Farrington, 301 N. Y. 247, supra, extending the doctrine of MacPherson v. Buick, 217 N. Y. 382, against “ suppliers ”, i.e., lessors or bailors for hire; MacKibbin v. Wilson & English Constr. Co., 263 App. Div. 1014, mot. for lv. to app. den. 288 N. Y. 738; see Outwater v. Miller, 3 Misc 2d 47; Thomas v. Leary, 15 A D 2d 438.) Whether liability extends to bystanders and strangers, not employees of the lessee or bailee, on the theory of strict liability in tort, founded upon breach of implied warranty of fitness, is unresolved in New York. (Berzon v. Allen Motors, 23 A D 2d 530; Greenberg v. Lorenz, 9 N Y 2d 195; Goldberg v. Kollsman Instrument Corp., 12 N Y 2d 432.) Although these cases involve only the liability of manufacturers and sellers, their rationale would seem to apply with equal force with respect to lessors or bailors. However, as already noted, the liability of defendants to plaintiff here was not founded upon breach of warranty or strict liability in tort. Accordingly, McLean’s reliance on these theories of liability as a basis for its cross complaint is misplaced.


"Generally, ' "[r]es judicata" describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in <mask> with them.' " ( Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 226, 103 Cal.Rptr.3d 124.) Res judicata bars a subsequent claim when " '(1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding.' [Citation.] Upon satisfaction of these conditions, claim preclusion bars 'not only ... issues that were actually litigated but also issues that could have been litigated.' " ( Ibid . )


Generally speaking, there has been a hesitancy on the part of the courts to extend liability beyond reasonable limits (see, Palka v Servicemaster Mgt. Servs. Corp., supra, at 586-587). As stated in Strauss v Belle Realty Co. (65 NY2d 399, 402-403 [1985]):* "But while the absence of <mask> does not foreclose recognition of a duty, it is still the responsibility of the courts, in fixing the orbit of duty, 'to limit the legal consequences of wrongs to a controllable degree’ (Tobin v Grossman, 24 NY2d 609, 619; see also, Howard v Lecher, 42 NY2d 109), and to protect against crushing exposure to liability (see, Pulka v Edelman, 40 NY2d 781, supra; Ultramares Corp. v Touche, 255 NY 170). 'In fixing the bounds of that duty, not only logic and science, but policy play an important role’ (De Angelis v Lutheran Med. Center, 58 NY2d 1053, 1055; see also, Becker v Schwartz, 46 NY2d 401, 408). The courts’ definition of an orbit of duty based on public policy may at times result in the exclusion of some who might otherwise have recovered for losses or injuries if traditional tort principles had been applied.”


“ 4. That the plaintiffs’ original Complaint and Amended Complaint allege the following causes of action: (1) seeking to recover for negligence; (2) seeking to recover for breach of *306warranty; (3) alleging strict liability and tort; (4) a derivative cause of action on behalf of the plaintiff’s wife based on the preceding three causes of action. * * * “ 7. Any cause of action in tort whether based upon strict liability or ordinary negligence has been barred at the latest by the expiration of more than three years from the date of the accident which occurred on June 27,1968, namely June 27, 1971. Obviously, the plaintiff can not now institute a new action against the defendant for strict liability and tort or for negligence because the statute of limitations prohibits it. At the same time, the plaintiff has no pending’ action and Complaint which is subject to amendment because his Complaint, in its entirety, has been dismissed as to all causes of action. “8. It is now over 10 years since the date of the sale of the machine referred to in the Complaint from the defendant to the Endicott Johnson Corporation. It is 5% years since the date of the occurrence alleged to have caused injury to the plaintiff. It is over 4 years since the Summons in the action originally was served. To create a completely new cause of action and new Complaint after the lapse of such time can not be justified. “ 9. It is respectfully submitted that the Court is without the power to supersede the prior Order dismissing the cause of action for strict liability and tort which was affirmed by the Appellate Division and leave to appeal to the Court of Appeals denied. There is nothing in the case of Codling vs. Paglia, 32 N. Y. 2d 339, which in any way reflects a determination of the Court of Appeals to overrule the statute of limitations question which has already been passed upon in this case by an Order of the Appellate Division which the Court of Appeals refused to review.” It appears that a significant distinction is unfolding between “ strict liability in tort ” or “ strict tort liability ” (Mendel v. Pittsburgh Plate Glass Co., 25 N Y 2d 340, 343, 345) and “ strict products liability ” (Codling v. Paglia, 32 N Y 2d 330, 343), and that * ‘ a new cause of action for strict products liability, independent of warranty ” has been established (Rivera v. Berkeley Super Wash, 44 A D 2d 316). As noted in Mendel (supra, p. 345), “ strict liability in tort and implied warranty in the absence of <mask> are merely different ways of describing the very same cause of action ”, and the statutory time limitation is computed from the time of sale. The statutory time limitation for the commencement of a strict liability in tort action may, and at times does, expire before the injuries complained of are sus-*307tained. The new cause of action, “ a strict-products-liability cause of action is founded on a tortious wrong and thus is governed by accrual and limitation rules applicable to claims sounding in tort ” and “ the three-year Statute of Limitations applicable to actions to recover damages for personal injuries, with accrual of the action at the time of injury, is applicable ” (Rivera, supra, p. 325). Whether Codling establishes a new rule concerning the quantum of proof required in a products liability case, or whether it restated the rule which the court had approved in Market v. Spencer (5 N Y 2d 958, affg. 5 A D 2d 400), need not, under the circumstances, be considered in determining the present motion. Contributory negligence is a defense to an action for strict products liability. In Codling v. Paglia (32 N Y 2d 330, 335, supra) the court wrote, inter alia: “ We hold that today the manufacturer of a defective product may be held liable to an innocent bystander, without proof of negligence, for damages sustained in consequence of the defect ”, and stated (p. 342): “ We accordingly hold that, under a doctrine of strict products liability, the manufacturer of a defective product is liable to any person injured or damaged if the defect was a substantial factor in bringing about his injury or damages; provided: (1) that at the time of the occurrence the product is being used (whether by the person injured or damaged or by a third person) for the purpose and in the manner normally intended, (2) that if the person injured or damaged is himself the user of the product he would not by the exercise of reasonable care have both discovered the defect and perceived its danger, and (3) that by the exercise of reasonable care the person injured or damaged would not otherwise have averted his injury or damages.”


The basic, and in my view the only sustainable, thrust of the respondent mother’s claim of unconstitutionality, lies in the complementary propositions (A) that the Court of Appeals has established that no natural parent can be permanently deprived of custody of her young infant child without parental consent, absent <mask>, unless that parent is “ unfit ” (cf. People ex rel Kropp v. Shepsky, 305 N. Y. 465; People ex rel. Portnoy v. Strasser, 303 N. Y. 539; Matter of Bistany, 239 N. Y. 19), and (B) that no such permanent deprivation can be decreed where a parent is fit enough to care for her other young children, unless her unfitness for this one is proved in the same manner as required by another statutory scheme leading to a finding of “permanent neglect” under the Family Court Act (art. 6, part 1). Perhaps unfitness is not the test under the “permanent neglect” provisions of the Family Court Act, but rather that the “ permanency ” of the neglect, that is to say, a true intention permanently to “abandon”, or permanently to be unable to care for, the infant is requisite to be inferred from the provisions of the Family Court Act. That statute expressly mandates the custodial agency to try to encourage and strengthen the parent-child relationship. Under sections 611, 614 and 622 of the Family Court Act, the agency must plead and prove that the parent has substantially and continuously failed to maintain contact with the child or the agency with whom the child was placed for a period of more than one year and that the parent has failed to plan for the future of the child, although physically and financially able to do so, “notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship ”. The 1971 amendment of section 611 of the Family Court Act continues the one-year period, but excuses proof of diligent efforts to encourage and strengthen the parent-child relationship when such efforts are detrimental to the welfare of the infant. (L. 1971, ch. 901.)


Ordinarily, the surrender of a lease is accomplished by the vacating of the premises and the return of the keys to the landlord (see Matter of Eight Cooper Equities v Abrams, 143 Misc 2d 52 [1989]). However, when a tenant abandons, a landlord may also elect to treat the <mask> as a surrender of the tenant’s interest (see e.g. Lewis v Cathedral Parkway Towers, 17 Misc 3d 129[A], 2007 NY Slip Op 51935[U] [App Term, 1st Dept 2007]; 2 Dolan, Rasch’s Landlord and Tenant— Summary Proceedings § 26:6 [4th ed]; see also tenBraak v Waffle Shops, Inc., 542d 919 [4th Cir 1976]).


We now review whether Mother failed to support her children for four consecutive months immediately preceding her incarceration. Tenn. Code Ann. § 36-1- 102(1)(A)(iv)(a). At the outset of DCS’s involvement with this family, Mother reported that her last employment was ten years ago with Waffle House. According to Ms. Williams, Mother claimed to have worked several jobs during DCS’s involvement with the family: a phone sex operator; a receptionist at a moving company; an employee with a sitting company; and an employee with a cleaning service. Despite these claims, DCS never received verification of Mother’s employment at any time during its three years of involvement with this family. In a CASA report from October 2020, Dr. Wood noted that Mother had stated on several occasions that she wanted to start paying child support. However, Dr. Wood further noted that there was no record of any payments or any arrangements to begin payments. Throughout DCS’s involvement with this family, Mother was consistently required and reminded to obtain employment with an income sufficient to provide for her needs and her children’s needs. In July 2019, approximately five months before the applicable four-month period, the third permanency plan noted that Mother still needed to obtain employment and provide a check stub in order to verify her employment. Following this reminder, Mother did not report that she had obtained employment until around April 2020, which was after her incarceration and after the subject petition was filed. Ms. Williams testified that there should not have been any excuse for Mother not to seek a job because DCS provided her with bus passes. Ms. Williams testified that, to her knowledge, Mother had not provided any income or support from her various alleged jobs to help with her children’s care. The juvenile court credited the testimony of Ms. Williams. “Because the trial court is able to observe witnesses as they testify, appellate courts afford deference to the trial court’s credibility assessments of live, in-court testimony.” Phillips v. Hatfield, 624 S.W.3d 464, 474 (Tenn. 2021) (citing Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014); Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783-84 (Tenn. 1999)). Given - 18 - Ms. Williams’ testimony concerning Mother’s continual failure to obtain employment, provide employment verification, and provide income and support for her children, we find that Mother failed to support her children. Mother has failed to provide financial support for her children since DCS became involved in March 2018, which includes the four months immediately preceding her incarceration in January 2020. Therefore, we affirm the juvenile court’s finding that DCS met its burden of proof on the ground of <mask> by an incarcerated parent for failure to support.


Although the testatrix may have been entitled to a decree of separation prior to 1937, or as late as 1940, she made no effort to obtain it, and apparently did not want it, for she took petitioner back and lived with him as husband and wife until her death. By April, 1947, any cause of action which she may have had arising prior to 1940 was lost to her by lapse of time. (Brauch v. Brauch, 142 Misc. 464.) Respondent, therefore, must stand on the marital situation in the subsequent years of testatrix’ life, during which time petitioner cohabited with her. No question of <mask> is presented, therefore, but only the question of whether the petitioner neglected or refused to provide for his wife.


It is clear that the appellants understood that they would be required to pay $250 each if Richards should abandon his family. The mistreatment and <mask> of his family by Richards has been well established, and one would prefer to enforce the undertakings which the appellants are morally bound to fulfill, but legal basis for their enforcement does not exist. Such undertakings may be forfeited only by the failure to make weekly payments ordered by the magistrate. No weekly payments have been ordered.


Perkins asserts two points on appeal. In Point One, Perkins argues that the motion court clearly erred in failing to conduct an <mask> inquiry following appointed counsel's filing of a statement in lieu of an amended motion. In Point Two, Perkins maintains that the motion court clearly erred in denying the claim in his pro se amended motion that his plea was involuntary because the plea court failed to inform him of the range of punishment.


Under 8 USC § 1101 (a) (27) (J) and 8 CFR 204.11 (c), state juvenile courts are charged with making a preliminary determination of the child’s dependency and his or her best interests, which is a prerequisite to an application to adjust status as a special immigrant juvenile. “The SIJ statute affirms the institutional competence of state courts as the appropriate forum for child welfare determinations regarding abuse, neglect, or <mask>, and a child’s best interests” (J.J.X.C., 318 Ga App at 425, 734 SE2d at 124 [citation omitted]; see also In re Adoption of Peggy, 436 Mass 690, 699, 767 NE2d 29, 37 [2002], cert denied sub nom. S.T. v Massachusetts Dept. of Social Servs., 537 US 1020 [2002]; In re Juvenile 2002-098, 148 NH 743, 748, 813 A2d 1197, 1201 [2002]; Y.M., 207 Cal App 4th at 908, 144 Cal Rptr 3d at 66; B.F., 207 Cal App 4th at 629-630, 143 Cal Rptr 3d at 735-736).


2 The government’s notice of appeal, filed December 29, 2020, sought to appeal both the October 7, 2020 order granting Wright’s § 2255 motion and the November 3, 2020 amended criminal judgment. However, the government now states it challenges only the § 2255 order and not the amended criminal judgment. In light of the government’s express <mask>, we need not address Wright’s argument in response to this Court’s Jurisdictional Question that the government’s notice of appeal was untimely as to the amended criminal judgment and DENY AS MOOT Wright’s construed motion to dismiss the government’s appeal from the amended criminal judgment. 3 When reviewing a district court’s denial of a § 2255 motion, we review ques- tions of law de novo and factual findings for clear error. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004). Similarly, we review de novo whether procedural default precludes a § 2255 movant’s claim, which is a mixed ques- tion of law and fact. Granda v. United States, 990 F.3d 1272, 1286 (11th Cir. 2021). USCA11 Case: 20-14869 Date Filed: 01/14/2022 Page: 8 of 22


There can be no doubt that' the words “ final adjudication by the supreme court denying alimony in a "separation action ” embrace a case where a decree of separation was entered in favor of the husband, either upon his complaint or counterclaim. In such type of case it is manifest, and well settled, that the Supreme Court judgment relieves the husband of the duty to support the *837wife except to the residual extent recognized and enforceable under the statutory provision just quoted, (see Anonymous v. Anonymous, 20 N. Y. Supp. [2d] 514.) Typical decisions in that category are Matter of Chandler v. Chandler (241 App. Div. 390); Gilgun v. Gilgun (N. Y. L. J., May 2, 1935, p. 2249); Cosgrove v. Cosgrove (23 N. Y. Supp. [2d.] 586), and Anonymous v. Anonymous, (supra.) But, in my opinion, despite certain language (hereinafter analyzed) in Matter of Collins v. Collins (245 App. Div. 612) and Myers v. Myers (251 id. 267), different considerations are applicable to a case where there was only a dismissal of the wife’s separation action complaint unaccompanied by an affirmative finding of <mask> of the husband by the wife or cruel and inhuman treatment of him by her or such conduct on her part towards him as may render it unsafe and improper for him to cohabit with her and a consequent reduction of the husband’s support duty to one of merely indemnifying the community against the burden of her support as a public charge, (cf. People v. McCarthy, 257 N. Y. 567; affg., 139 Misc. 746; Hodson v. Holmes, 162 id. 226; Aronowitz v. Aronowitz, 159 id. 103; Hodson v. Picker, 159 id. 356; People v. Schenkel, 258 N. Y. 224.)


<mask> has been defined as the desertion of a spouse with intent not to return or with an intent that the marriage should no longer exist. (Matter of Hess, 143 Misc. 335, 336; Matter of Bingham, 178 Misc. 801, affd. 265 App. Div. 463.) Matter of Bingham (supra) involved the validity of an asserted right of election by a husband against whom decedent during her lifetime had obtained a Nevada divorce decree which the Surrogate determined to be invalid. The court held that the husband by having remarried and having accepted the benefits of such divorce decree and having thereby recognized the validity of such subsequent marriage, could not retain the benefits which would have been derived from the continued existence of the prior marriage, citing Mirizio v. Mirizio (242 N. Y. 74). The court also determined that subdivision 5 of section 18 of the Decedent Estate Law relating to the abandonment of a wife, must necessarily embrace an abandonment of the marriage or of the marital status as a forfeiture of the right to elect against a will. There can be no clearer or more convincing abandonment of the marital status, or of a spouse, than the solemnizing of a ceremonial marriage to another followed by open and continuous cohabitation and the birth of issue of the subsequent union. The abandonment would not be negated by reason of any invalidity of the subsequent marriage. Although abandonment cannot be predicated upon a voluntary separation or living apart (Matter of Stolz, 145 Misc. 799), it does not follow that such a separation prevents a subsequent abandonment within the meaning of subdivisions 4 or 5 of section 18 of the Decedent Estate Law. (See Matter of Bingham, supra.)


Hernandez too had said the bag was not hers. But she clearly had no rights of privacy therein (or in Castro’s small bag) even before any <mask>. The placing of property in the bag of another cannot give one a reasonable expectation of privacy in such bag. (Rawlings v Kentucky, 448 US 98; People v Buckley, 81 AD2d 511 [1st Dept].)


The one exception to the attorney’s entitlement to protect his or her fee by the assertion of a lien is the situation presented where the attorney is discharged for cause, i.e., as a result of attorney misconduct or the unjustifiable <mask> of the representation, in which case neither a retaining lien nor a charging lien may be asserted (see, Klein v Eubank, 87 NY2d 459, 464 [1996]; Teichner v W&J Holsteins, 64 NY2d at 979, supra; see also, Campagnola v Mulholland Minion & Roe, 76 NY2d 38, 44 [1990]; Matter of Montgomery, 272 NY 323, 326 [1936]; Holmes v Evans, 129 NY 140 [1891]; Shalom Toy v Each & Every One of Members of N.Y. Prop. Ins. Underwriting Assn., 239 AD2d 196, 198 [1st Dept 1997]). Whether an attorney was discharged with or without cause must be determined by a timely hearing (see, Teichner v W&J Holsteins, 64 NY2d at 979, supra; Matter of Clark [Vitiello], 261 AD2d 824 [4th Dept 1999]; Marschke v Cross, 82 AD2d 944 [3d Dept 1981]). If the discharge was for cause, the attorney may not recover his or her compensation (see, Teichner v W&J Holsteins, 64 NY2d at 979, supra). If it is determined that the discharge was without cause, and occurred before the completion of the attorney’s services, the amount of compensation must be determined on a quantum meruit basis (see, Teichner v W&J Holsteins, 64 NY2d at 979, supra).


The referee in the present case appears to have assumed that an <mask> of some kind was necessary to entitle the plaintiffs to recover. He states in his report that the plaintiffs, “by reason of” an abandonment which he'had previously found as a fact, and them payment to the consignees of the amount of their loss, “ as well ” (meaning, undoubtedly, “ as much ”) as by virtue of the assignment to them, acquired the rights of the consignees. That he meant that such rights were acquired by either means, separately and indifferently, I think evident from his contrasting the phrases “by reason of” and “ by virtue of,” as well as his use of the word “ subrogated,” to express the mode of acquiring such rights, which is not appropriate to an assignment, and his succeeding statement “that the circumstances of the ease constituted notice to the defendants of the intervening rights of the plaintiffs ” [not as assignees, but] “ as insurers of the property injured; and that, therefore, “ their settlement * * * was without affect on the previously acquired rights of the plaintiffs.” I cannot doubt, therefore, that the referee meant to rest his conclusions as much, if hot more, on the right of the plaintiffs as insurers to whom the consignees had, by other means, transferred all their interest in the goods, than on them right as assignees, particularly as he does not speak of any express or implied *109notice of the assignment as such before the settlement, which would be necessary to defeat it.


According to the prosecutor’s information which replaced the original accusatory instrument, defendant was charged with 17 counts of overdriving, torturing and injuring animals; failure to provide proper sustenance (Agriculture and Markets Law § 353), and seven counts of <mask> (Agriculture and Markets Law § 355). The court dismissed several counts prior to trial, and of the 11 counts submitted to the jury, defendant was only found guilty of four counts of abandoning animals.


70 Cornell Law Review 316, 316-317 (<mask> of the Two-Pronged Aguilar-Spinelli Test: Illinois v Gates) states of the decision of Illinois v Gates (supra): "Gates does more than replace the two-pronged test with a simpler, more practical standard; it drastically expands the opportunity for police to use less than reliable information as a basis for warrants * * * [T]he fourth amendment sometimes collides with law enforcement interests by limiting the use of suspicious but useful information as a basis for warrants.”


Indeed, the court in Matter of Goethie (9 Misc 2d 906, 908) conclusively stated: "There can be no clearer or more convincing <mask> of the marital status, or of a spouse, than the solemnizing of a ceremonial marriage to another followed by open and continuous cohabitation and the birth of issue of the subsequent union.” In the case at bar, the respondent remarried after returning to Iran, has lived with his second wife for the last 25 years and together they have raised two children. Although he returned, with his new family to the United States, he took no affirmative steps to reunite with decedent before her death.


*837The executrix also claims a constructive eviction from the apartment. ‘A constructive eviction occurs only where, through the landlord’s acts, the tenant has been substantially deprived of the beneficial enjoyment of the demised premises ” (2 McAdam, Landlord and Tenant [5th ed.], p. 1392) or where “ there has been an obstruction to the beneficial enjoyment of the premises and a diminution of the consideration of the contract by the act of the landlord ” (Tollman v. Murphy, 120 N. Y. 345, 351). The executrix testified to a number of omissions by the landlord which she claims had the cumulative effect of depriving her husband and her of the beneficial enjoyment of the premises and thus evicting her. Most of the matters are of minor importance. The painting and decorating of the apartment and finishing the floors were not completed until more than six weeks after they moved into the apartment. She complained of a failure to finish the closet floors, but there is no basis for finding that the landlord ever agreed to provide wood flooring in the closets. There were leaks in plumbing, temporary failure of an air conditioner, excessive moisture from an air conditioner and difficulties in ventilation of the kitchen, but it would appear that these minor matters were adjusted to the extent that the landlord was obliged to do so. There is no evidence that these conditions persisted up to the time of the <mask> of the premises.


On February 9, 1954, the Town Board voted to “ temporarily abandon ” three town roads, one of which being the town road from the “Elmer Barnum Residence to Joseph Chodakowski Residence.” On May 15,1959, the Town Board passed a resolution which provided that the words temporarily abandoned should be amended to read “qualified <mask>.” The latter resolution was an apparent attempt to comply with section 205 of the Highway Law. As the required notices, public hearings, etc. were not performed, said resolutions were undoubtedly a legal nullity and did not accomplish anything. It is possible, of course, that, if an article 78 proceeding had been brought to set aside the qualified abandonment, it might have been denied on the ground of laches; or, on the ground that to require this town to reconstruct a road on a public easement, which had essentially reverted to nature, would work an unnecessary financial hardship on said town; and, as no householder resided on the abandoned section of the road, would compel the town to perform an idle and useless act. (See Matter of Salisbury v. Rogers, 252 App. Div. 223.) In any event, said resolutions do demonstrate the Town Board members’ thoughts as to the use and usability of said town road in 1954 and 1959. The town did accept State aid for said town road up to 1961 when such aid was discontinued. Having worked with several towns as a Town Attorney, I am not too surprised by the latter fact and do not attach any significance to it as it might relate to a nonabandonment of said road.


“ To create a contract by implication there must be an unequivocal and unqualified assertion of a right by one of the parties, and such silence by the other as to support the legal inference *836of his acquiescence.” (Gray v. Kaufman Dairy & Ice Cream Co., 162 N. Y. 388, 397.) There is no basis for implying an acceptance of the surrender from the landlord’s failure to respond to the letter. The letter indicates an <mask> of the premises by the widow of the tenant. It did not call for any response by the landlord. There is “no rule of law which requires a person to enter into a correspondence with another in reference to a matter in dispute between them, or which holds that silence should be regarded as an admission against the party to whom the letter is addressed.” (Gray v. Kaufman Dairy & Ice Cream Co., supra, p. 398.) There would be even less reason for drawing an inference from the failure to respond to the letter in this case because that letter did not even assert a surrender of the lease or make any other positive assertion of right.


Accordingly, I find that no default at all has occurred to justify judgment over for indemnification, nor is there any legal justification for dismissal of the suit based on its claimed <mask>. In these circumstances, arguments urged by the parties relative to the sufficiency of the complaint in its present form and the adequacy of the evidence in the main suit, referable to the issues of control and active negligence, adequate to support a finding of liability for indemnification without a trial on the merits, must await an appearance and joinder of issue. Naturally, if on the pleadings as they may shortly emerge, such a trial becomes necessary, the plaintiff in the main suit should not be required to await resolution of the issue of indemnification before enforcement of the judgment procured by him.


As I have previously commented: “ Convictions of the husband as a ‘ disorderly person ’ under criminal statutes predi*701coted on <mask> of a wife allegedly likely to become a burden on the public have been frequently reversed on the square ground that the accused was willing, able, and offered in good faith to provide for such wife in a joint home. (People v. Pettit et al., 74 N. Y. 320; People ex rel. Feeney v. Dershem, 78 App. Div. 626; People ex rel. Demos v. Demos, 115 App. Div. 410; cf. People ex rel. Mueller v. Mueller, 164 App. Div. 386.) However, those statutes, being penal, were subject to strict construction, and decisions thereunder are not necessarily determinative of the question whether subdivision 4 of section 137 of the Domestic Relations Court Act may not constitute a subsequent mandate of the Legislature for a contrary conclusion in a civil proceeding (see Matter of Kane v. Necci, 269 N. Y. 13) under the Domestic Relations Court Act of the City of New York.” (“ Salvatore ” v. “ Salvatore ”, 185 Misc. 309, 312.)


In opposition to this branch of the motion, petitioners refer to Department of Hous. Preservation & Dev. v St. Thomas Equities Corp. (128 Misc 2d 645 [App Term, 2d Dept]). They assert this case provides that the court should not discharge a 7-A administrator absent " 'a prima facie showing that the reason for the appointment no longer exists. In other words, the movant would have to demonstrate to the trial court that repairs have been made or essential services provided and that there is a plan for the continued maintenance of the *230building. In the absence of such a showing, a court would be remiss in granting a motion seeking the discharge of the Administrator since "a grant of the relief requested would place the property in a state of <mask> to the great detriment of the tenants” ’ ” (128 Misc 2d, at pp 649-650, quoting Swallow v Schnipper, supra).


The respondent mother testified that after she recovered from her operation, she urged the father to return her son to her custody. The respondent mother nevertheless allowed the father to keep her son because of the father’s persuasion that her son’s learning disability was being solved by remedial schooling in New York City. The mother therefore consented to a second year of custody by the father and stepmother, subject to a visitation arrangement. Minor conflict appears as to whether there has been any visitation between mother and son since 1970. A single visitation in 1971 in Putnam County is the only visitation involved in this conflict. I find that this one visitation did take place, but it is undisputed that there has been no visitation from early 1971 until commencement of this adoption proceeding in April, 1974. This period of nonvisitation, if “ without good reason ”, is well in excess of the six-month statutory period of nonvisitation which qualifies as an element of <mask>.


There is no evidence in this case of a direct and formal relinquishment by the consignees of all then interest in the damaged grain to the plaintiffs; and the question of its <mask> as a fact is, therefore, not without difficulty in this case. The preliminary steps of possession taken by the plaintiffs of such damaged part, by direction of the defendants, after a series of notices of the loss, first by the latter to the consignees, then by them to the plaintiffs, and finally, some negotiations between the parties to this action, did not constitute an abandonment; nor would the mere sale of part of the cargo, and the receipt of its proceeds by the plaintiffs, unless by the consent of the consignees, operate as such. In fact, at the time when the plaintiffs thus took possession of the cargo, it was still in possession of the defendants as carriers; and they only delivered it to the plaintiffs to take charge of it for the parties interested. There is no direct evidence that the consignees, at that time, had any agency in the transfer of the property. Subsequently, however, their agent, in the very receipt given by him to the agent of the defendants, on the 9th of May, 1861, and which they claim to be a settlement, admitted that the damaged grain had been received by the consignees at Fort Plain, thus recognizing the delivery to the plaintiffs as a receipt by themselves. The damaged grain having been sold by the agent of the plaintiffs, and its proceeds received by them, they settled with the consignees as for a total loss of the damaged grain, without regard to such sum so received. That evidence was certainly strong enough to have defeated any action by the consignees against the plaintiffs for the conversion of such damaged grain. I think it was also evidence from which the referee was at liberty to infer an abandonment of the damaged grain.’ (See New York Insurance Co. agt. Roulet, 24 Wend. 513.) And if necessary for the determination of the ease, we, ought not to disturb his finding Upon that point.


(b) I do not deduct the quantity of water used for the operation of the old or “ Baldwinsville canal,” namely, twenty cubic feet per second, from the quantity required for the Barge canal. The state has not abandoned the old canal or the right to use so much of the impounded waters as shall be necessary for operating in navigation that canal and lock, and which remains appropriated alone to that canal and lock. An <mask> of that canal and lock (if permissible, without just compensation to the owners of the water rights, a question I do not consider) must be effected, not by a judicial, but by a legislative declaration. City of Mt. Vernon v. New York, N. H. & H. R. R. Co., 232 N. Y. 309.


"mr. prosperi: Your honor, Mr. Huether from our office is engaged in a trial today. He told me that the Court was to set a trial date today. I believe the Court may have preliminarily discussed a May 1st date, and Mr. Huether says that would fit in his calendar. "the court: How is that with the defense counsel? "mr. scanlon: That will be fine, Your Honor.” The court finds that defendant waived his right to a trial within the 180-day period by concurring in the decision to set a trial date beyond the statutory period. The Court of Appeals has held that "[t]he facts in a particular instance may warrant a factual determination that the defendant has elected not to assert or has abandoned his rights under the Agreement on Detainers and has chosen to proceed to disposition without reference thereto” (People v Torres, supra, at 124). Courts in this State have found an <mask>, or waiver, of a defendant’s rights under the IAD in a myriad of circumstances (see, Matter of Amiger v Long, 101 AD2d 616; People v Lambert, 61 NY2d 978; People v Gooden, 151 AD2d 773; People v Sacco, 199 AD2d 288). Although the precise issue before this court has not been determined by a court in New York State, courts in other jurisdictions have held that a defendant who concurs in a decision to set a trial date beyond the statutory period waives his rights under the IAD. People v Jones (495 NW2d 159, 160-161, 197 Mich App 76 [1992]) merits quotation: "A waiver is established when a defendant, either expressly or impliedly, agrees or requests to be treated in a manner contrary to the terms of the IAD * * * Valid waivers have *1036been found where either the defendant or his attorney agree to a continuance or a later trial date * * * To avoid waiving any rights under the IAD, the defendant must generally object to those procedures or actions by the trial court that may infringe upon the protections afforded by the IAD * * * [cjonduct that is inconsistent with the IAD will be viewed as establishing a waiver of statutory rights.”


Based upon the foregoing, plaintiff is entitled to summary judgment dismissing the defendant’s second counterclaim and the same is hereby dismissed. The motion is also granted insofar as the defendant seeks compensatory and punitive damages on her fourth counterclaim. The remainder of his application must be denied. Defendant demonstrates the existence of material issues of fact as to whether plaintiff has substantially performed his obligations under the separation agreement and as to the defense of justification regarding his claim for constructive <mask>.


The stipulation entered into on behalf of the petitioner shows the two enterprises to be essentially different. According to that, “no tubular ways for the transmission of cars and passengers by the application of atmospheric power, compressed air or other power, are intended to be constructed.” And that involves an <mask> of the railway described in terms in the petitioner’s charter. For the road, as it is now proposed to build it, “ is to be, in all respects, constructed and operated in conformity with the conditions and restrictions prescribed by the commissioners of rapid transit.” These commissioners were provided for and appointed under the authority of chapter 606 of the Laws of 1875. This is *318a general law prescribing the terms on which elevated railways may be constructed and operated in all portions of the State. And the authority created by it is ample for the inclusion of all feasible plans which may be found promotive of that end. And they are to be devised and adopted only by the commissioners, whose appointment it has provided for. (Laws of 18Y5, 741, chap. 606, § 5.) It is according to their plan, which differs very materially from that of the petitioner’s charter, and in no way includes a tubular railway, that it is now proposed to construct the railway. That is clearly indicated from the description given of the design itself by the commissioners, and it is implied by the terms of the stipulation already referred to. Indeed, if there had been no material difference intended, the petitioner would have been in-no need of the authority of the commissioners acting under the act of 1875. It was because it was necessary to avail itself of the authority of that act that it was induced to adopt their plan.


Therefore, article 18-B ought to be viewed as an ameliorative partial provision, not as an <mask> of the pro bono publico concepts. The statute is not intended to change the nature of assigned counsel’s obligations and expectations, except insofar as it provides for some limited compensation. This should not be read to open the floodgates to permit assigned counsel to assert a claim for fees against sources other than the county, in excess of statutory fees. The assignment of counsel has been based on a prior determination that the client, here the petitioner, could not afford to retain counsel. It is in this capacity that the attorney was assigned.


To constitute a dedication of land there must be clear, unequivocal and decisive acts of the owner manifesting a positive and unmistakable intention to make a permanent <mask> of his property to the specific purpose intended. Dedication itself is an easement in land, but these plaintiffs do not contend for the effect of a full dedication to the public. They claim the devotion to them and others of the space called the Ramble, by right of their purchases, and this involves another view.


Furthermore, undaunted by the <mask> of that application, defendant, having married his second wife, submitted a second application in July 1987. Thus, at the time of his plea, defendant had been consistently working for the preceding two years to legalize his status so that he could remain in this country. His actions subsequent to the plea, in persisting to secure legal status, similarly demonstrate his concern with avoiding deportation.


The Federal Circuit considered the evidence available in Cauquelin and found, in the absence of evidence affirmatively indicating the railroad did not intend to abandon the line, there was sufficient evidence to support the trial court’s ruling granting summary judgment in favor of the plaintiffs. Caquelin, 959 F.3d at 1372–73. In Caquelin, the Federal Circuit considered the railroad’s actions before the NITU (“The railroad filed an application to abandon, indicating an affirmative intent to abandon.”), during the NITU (“[I]t refused . . . [to consent to an extension of the NITU], confirming an interest in abandoning sooner rather than later” and removed track during the NITU, “a precondition to abandonment-based easement termination under Iowa law.”), and after the NITU (“It completed <mask> just three months after . . . the date . . . it became legally authorized to abandon the line, suggesting a comparable time period had authority been granted [earlier].”). Id. at 1373. Accordingly, Caquelin clarified that a court must consider events occurring before, during, and after the NITU issues when assessing the railroad’s intent at the time of the NITU. 6 Id.


If it is claimed that the consideration for the granting of such a right consists in part of a greatly lowered price that the private contractor charges the State for compiling and supplying the information, the illegality of the contract is further demonstrated. Section 174 of the State Finance Law *313requires competitive bidding except when a State department or agency may purchase specified equipment or supplies up to $1,000. The pegging of the price of the contract herein involved at $975 was a transparent attempt to come under the exception for public bidding by purportedly fixing the consideration at $25 less than the cutoff price. In actual fact, however, as has been indicated, the contract had an actual value of up to one million dollars. The alleged <mask> by RX Data Corp. of the $975 payment shows how inconsequential it is in the light of the over-all contractual scheme.


An erroneous assumption that the language now found in the Constitution (art. VI, § 7) was in effect in 1924, makes it understandable how with perfect sincerity, time after time, litigants have appeared in this court quoting Matter of Bistany (239 N. Y. 19, supra), and have urged the fallacious rule that on the issue of <mask> the natural parent must be given the benefit of eyery controverted fact, no matter how improbable the story and no matter how unworthy of belief his testimony appears to the trier of the facts. For this argument the following anachronistic quotations from Matter of Bistany are relied on: “To prevail they must be able to show that even though the parents be given the benefit of every controverted fact, a finding of abandonment follows as an inference of law ” (p. 21). “ Again we must assume the acceptance of the parents ’ *657version ” (p. 22). “We are unable to. yield to the petitioners’ contention that the facts above recited point so decisively to an abandonment that every other inference must be held to be excluded” (p. 23).


The Board has interpreted the Agricultural Labor Relations Act to mean that once a labor organization is certified as the exclusive bargaining representative of a group of employees, it remains certified "until it is decertified or a rival union is certified, or until the union becomes defunct or disclaims interest in continuing to represent the unit employees." (Lu-Ette Farms, Inc. (1982) 8 ALRB No. 91, p. 5.) This principle is referred to as the "certified until decertified" rule and its two exceptions. (Arnaudo I , supra , 40 ALRB No. 3, p. 9.) The exceptions of defunctness5 *655and disclaimer are not expressly stated in the Agricultural Labor Relations Act. Thus, from the perspective of statutory construction, the exceptions were not clearly stated in the text, but were derived by inference. *36Both of the exceptions are referred to by the Board under the label "<mask>," which the Board describes as "a legal term of art."6 (Bruce Church, Inc . (1991) 17 ALRB No. 1, p. 9.) "[T]he Board has defined abandonment as a showing that the Union was either unwilling or unable to represent the bargaining unit." (Id . at pp. 9-10.) More generally, abandonment is, "in essence, a showing that the Union had effectively left the scene altogether." (Id . at p. 10.)


Although there is some confusing language in various decisions regarding the owner’s right to recover for unfinished work (see, e.g., Clark v. Fleischmann Vehicle Co., 187 N. Y. S. 807, 814), there is no reason for distinguishing between the actual cost necessarily expended by the owner in completing the job and the reasonable cost of the uncompleted work, except in the nature of the proof and the kind of testimony to be required by the court. In Comey v. United Sur. Co. (217 N. Y. 268, 276-277), Judge Cabdozo stated the rule applicable to an owner’s damages for an <mask> of a contract: “If he had not completed it, he would still have been entitled to his damages (Kidd v. McCormick, 83 N. Y. 391, 397). The fact that he did complete it makes the proof of his damages more certain. It supplies evidence of his loss which might otherwise have depended upon the estimates of experts. It has no other importance.”


So Lord Cottenham says in Munro a. Munro (7 Clark & Fin. R., 77): “ To effect the <mask> of the domicile of origin and substitute another in its place, is required le concov/rs de la volonte et dufait—animo et facto ; that is, the choice of a place, actual residence in the place then chosen, and that it should be the principal and permanent residence.”