Sentences with phrase «issue of fact exists»

If the plaintiff can demonstrate that a material issue of fact exists, then the motion will not be granted.

Boyer v. Werner (238 A.D. 2d 853)- plaintiff broker seeks commission due from defendant broker for referral of purchaser for golf course property; purchaser ultimately purchases golf course property plus second golf course; plaintiff broker seeks commission for referral fee for purchase of both golf courses; summary judgment granted as to the issue of defendant broker's liability in relation to the sale of the first golf course only; issue of fact exists as to referral of purchaser for second golf course and as to the amount of the commission split due (see also, Werner v. Katal Country Club [234 A.D. 2d 659]-RRB-.

First New York Realty Co., Inc. v. DeSetto (237 A.D. 2d 219)- summary judgment for broker reversed; issue of fact exists as to payment schedule of agreed - upon commission pursuant to oral brokerage agreement.

Werner v. Katal Country Club (234 A.D. 2d 659)- broker may recover a commission in the absence of being the procuring cause in a transaction where the seller terminates the broker's activities in bad faith and as a mere device to escape the payment of the commission; triable issue of fact exists as to seller's bad faith where seller engaged in direct negotiations with buyer and withdrew proposed contract indicating broker was the procuring cause and inserting himself as procuring cause after broker refused to reduce his commission; cause of action against attorney under Judiciary Law § 487 (1).

Harvard Associates, Ltd. v. Hayt, Hayt & Landau (238 A.D. 2d 378)- summary judgment to dismiss broker's claim for breach of contract denied where issue of fact exists as to whether or not broker was the procuring cause of re-negotiated lease; contract provision obligates the party to protect and preserve the broker's right to recover any earned commission from the owner.

Green Realty Corp. v. Polidori (224 A.D. 2d 384)- summary judgment on issue of seller's liability granted to broker for commission where broker procured a buyer who was ready, willing and able to purchase property and listing agreement identified broker as sole broker; issue of fact exists as to amount of commission.

Goldsmith Murphy, Inc. v. New York City Economic Development Corp. (236 A.D. 2d 339)- summary judgment motion to dismiss broker's complaint denied; issue of fact exists as to whether broker was procuring cause of tenancy.

Hammer v. Griffin (19 A.D. 3d 450) broker's motion for summary judgment denied; triable issue of fact exists as to whether broker had a contract with the defendant for the payment of a commission.

Fried v. David Berry Realty (17 A.D. 3d 405) brokerage agreement entitled broker to a commission when there is a meeting of the minds and a tenant was procured who was ready willing and able to lease upon the owner's terms; lease procured directly by owner conditioned lease upon obtaining operating certificates from the New York State Department of Health and the New York State Office of Mental Health; there was nothing in the record to indicate that approval by NYSOMH, which was denied, was a «term» imposed by owners and therefore triable issues of fact exist as to whether the broker's commission was earned.

Worldnet Real Estate, Inc. v. Suchow (19 A.D. 3d 982) broker's motion for summary judgment denied; issues of fact exist as to whether broker complied with his obligation under the listing agreement where the broker showed the property to a prospective buyer who thereafter informed the seller that they would not work with the broker and the seller thereafter terminated the listing agreement «for cause».

Dagar Group, Ltd. v South Hills Mall, LLC (12 A.D. 3d 552)- triable issues of fact exist where brokerage agreement required lease to be signed and delivered by date certain and where no lease was signed and delivered by required date; broker raised triable issues of fact with respect to whether principles were responsible for the failure of that condition by delaying execution of the lease; possession by one party of a right to cancel the lease after it has been executed does not defeat the broker's claim to its commission

Agawam Realty v. Haggerty (223 A.D. 2d 518)- summary judgment for broker's commission reversed; material issues of fact exist as to whether broker procured a buyer who was ready, willing and able to purchase; seller accepts second offer after initial buyer failed to sign contract and tender deposit within 8 days of receipt of contract which was based on terms of offer made by buyer in Purchase Memorandum; issue of fact as to whether buyer was willing to purchase as measured by whether buyer was provided reasonable time to sign contract and tender deposit; dissent finds broker earned commission prior to seller's determination buyer was unwilling to purchase.

Mavco Realty Corp. v M. Slayton Real Estate, Inc. (12 A.D. 3d 575)- triable issues of fact exist as to whether or not corporate broker was licensed at the time the services which formed the consideration for the claimed commission were rendered; a broker who is unlicensed when services were rendered can not recover commissions; triable issues of fact exist as to whether two individual defendants were licensed brokers at the time services were rendered

New Spectrum Realty Services, Inc. v. Weiser (273 A.D. 2d 172)- summary judgment for broker reversed; contract offered by proposed purchaser contained several terms which deviated from owner's offer of sale; issues of fact exist as to whether or not owner's unilateral efforts defeated the sale

Joseph P. Day Realty Corp. v. Chera (308 A.D. 2d 148)- broker's complaint for commissions reinstated where questions of fact exist as to whether broker was the procuring cause of a commercial tenant and if there was an implied contract which arose from landlord's acceptance of the benefits of broker's services; broker must plead and prove a contract of employment, express or implied, and in the absence of an express contract, an implied contract may be established in some cases by the mere acceptance of the labors of the broker; broker failed to establish that it was a third party beneficiary of lease agreement between landlord and tenant where provisions in lease merely provided for indemnification between the parties and did not expressly set forth that one party would be obligated to pay the broker's commission; indemnification provisions in the lease agreement do provide evidence of implied contract of employment with landlord where landlord agreed to indemnify tenant against brokerage commission claims from all brokers including plaintiff and where, to the contrary, tenant's reciprocal indemnification excluded plaintiff; triable issues of fact exist as to whether broker was the procuring cause where broker introduced the parties, showed the space to tenant's representatives, was involved in weekly negotiations with the parties over the lease terms, conveyed offers on behalf of tenant to landlord and participated in the meeting with the landlord and tenant at which the lease terms were finalized

Co. (295 A.D. 2d 554)-- issues of fact exist as to whether broker was the procuring cause of lease where broker not only introduced tenant to the property and gave tenant a tour of the property but, at the request of tenant, also provided proprietary lease information; there are also issues of fact as to whether tenant and broker had an implied contract; Supreme Court's order denying defendant's motion for summary judgment dismissing broker's cause of action seeking to recover damages in quantum meruit affirmed

Thus, the court found that an issue of fact existed as to whether Sawinski could perform the essential elements of his job even though he missed some work.

Not exact matches

Once again your se.xual orientation is not my issue, the fact that you preach about how good you are and how true your belief in the buybull is but yet you are being a hypocritew... hope your god delusion sends you to those burning pits (not that either exist but to point out the irony of your hypocrisy and expose you for what you are - a liar; a hypocrite; a poor example of good christard)

The philosophy of absolute idealism, so vigorously represented both in Scotland and America to - day, has to struggle with this difficulty quite as much as scholastic theism struggled in its time; and although it would be premature to say that there is no speculative issue whatever from the puzzle, it is perfectly fair to say that there is no clear or easy - issue, and that the only obvious escape from paradox here is to cut loose from the monistic assumption altogether, and to allow the world to have existed from its origin in pluralistic form, as an aggregate or collection of higher and lower things and principles, rather than an absolutely unitary fact.

If NO Deity exists, that I needn't expand another once of concern on the issue... If Deity / Deities DO, in fact, exist... Then it would seem morally appropriate for me to give thanks for my existence, given that... this thanksgiving...

Time for some brutal honesty... this team, as it stands, is in no better position to compete next season than they were 12 months ago, minus the fact that some fans have been easily snowed by the acquisition of Lacazette, the free transfer LB and the release of Sanogo... if you look at the facts carefully you will see a team that still has far more questions than answers... to better show what I mean by this statement I will briefly discuss the current state of affairs on a position - by - position basis... in goal we have 4 potential candidates, but in reality we have only 1 option with any real future and somehow he's the only one we have actively tried to get rid of for years because he and his father were a little too involved on social media and he got caught smoking (funny how people still defend Wiltshire under the same and far worse circumstances)... you would think we would want to keep any goaltender that Juventus had interest in, as they seem to have a pretty good history when it comes to that position... as far as the defenders on our current roster there are only a few individuals whom have the skill and / or youth worthy of our time and / or investment, as such we should get rid of anyone who doesn't meet those simple requirements, which means we should get rid of DeBouchy, Gibbs, Gabriel, Mertz and loan out Chambers to see if last seasons foray with Middlesborough was an anomaly or a prediction of things to come... some fans have lamented wildly about the return of Mertz to the starting lineup due to his FA Cup performance but these sort of pie in the sky meanderings are indicative of what's wrong with this club and it's wishy - washy fan - base... in addition to these moves the club should aggressively pursue the acquisition of dominant and mobile CB to stabilize an all too fragile defensive group that has self - destructed on numerous occasions over the past 5 seasons... moving forward and building on our need to re-establish our once dominant presence throughout the middle of the park we need to target a CDM then do whatever it takes to get that player into the fold without any of the usual nickel and diming we have become famous for (this kind of ruthless haggling has cost us numerous special players and certainly can't help make the player in question feel good about the way their future potential employer feels about them)... in order for us to become dominant again we need to be strong up the middle again from Goalkeeper to CB to DM to ACM to striker, like we did in our most glorious years before and during Wenger's reign... with this in mind, if we want Ozil to be that dominant attacking midfielder we can't keep leaving him exposed to constant ridicule about his lack of defensive prowess and provide him with the proper players in the final third... he was never a good defensive player in Real or with the German National squad and they certainly didn't suffer as a result of his presence on the pitch... as for the rest of the midfield the blame falls squarely in the hands of Wenger and Gazidis, the fact that Ramsey, Ox, Sanchez and even Ozil were allowed to regularly start when none of the aforementioned had more than a year left under contract is criminal for a club of this size and financial might... the fact that we could find money for Walcott and Xhaka, who weren't even guaranteed starters, means that our whole business model needs a complete overhaul... for me it's time to get rid of some serious deadweight, even if it means selling them below what you believe their market value is just to simply right this ship and change the stagnant culture that currently exists... this means saying goodbye to Wiltshire, Elneny, Carzola, Walcott and Ramsey... everyone, minus Elneny, have spent just as much time on the training table as on the field of play, which would be manageable if they weren't so inconsistent from a performance standpoint (excluding Carzola, who is like the recent version of Rosicky — too bad, both will be deeply missed)... in their places we need to bring in some proven performers with no history of injuries... up front, although I do like the possibilities that a player like Lacazette presents, the fact that we had to wait so many years to acquire some true quality at the striker position falls once again squarely at the feet of Wenger... this issue highlights the ultimate scam being perpetrated by this club since the arrival of Kroenke: pretend your a small market club when it comes to making purchases but milk your fans like a big market club when it comes to ticket prices and merchandising... I believe the reason why Wenger hasn't pursued someone of Henry's quality, minus a fairly inexpensive RVP, was that he knew that they would demand players of a similar ilk to be brought on board and that wasn't possible when the business model was that of a «selling» club... does it really make sense that we could only make a cheeky bid for Suarez, or that we couldn't get Higuain over the line when he was being offered up for half the price he eventually went to Juve for, or that we've only paid any interest to strikers who were clearly not going to press their current teams to let them go to Arsenal like Benzema or Cavani... just part of the facade that finally came crashing down when Sanchez finally called their bluff... the fact remains that no one wants to win more than Sanchez, including Wenger, and although I don't agree with everything that he has done off the field, I would much rather have Alexis front and center than a manager who has clearly bought into the Kroenke model in large part due to the fact that his enormous ego suggests that only he could accomplish great things without breaking the bank... unfortunately that isn't possible anymore as the game has changed quite dramatically in the last 15 years, which has left a largely complacent and complicit Wenger on the outside looking in... so don't blame those players who demanded more and were left wanting... don't blame those fans who have tried desperately to raise awareness for several years when cracks began to appear... place the blame at the feet of those who were well aware all along of the potential pitfalls of just such a plan but continued to follow it even when it was no longer a financial necessity, like it ever really was...

The volumes of books on the difficulties of marriage attest to the fact that attachment and other issues exist after the wedding.

In fact, the issue has become such a concern that the White House, NFL, the NCCA, and other similar entities have recently taken steps to better understand the risks of concussions, enhance safety standards, and improve existing practices so as to ensure player safety.

The fact that such a resolution exists is not a surprise, particularly in light of the fact that voters are so closely divided over this issue — 44 - 43, according to the most recent Q poll, 43 - 41 in NYC, despite the fact that the city's watershed would be protected via a no - drilling zone under the DEC's draft proposal.

So when people say a debt ceiling doesn't exist this side of February 7th 2014, they are referring to the fact the treasury can issue more bonds to remain cash - flow solvent.

From the Office Before an issue of DISCOVER can exist as a physical object, it needs to be conceptualized, reported, written, edited, fact - checked, copyedited, designed, and supplemented with advertisements.

While Hamilton's model can explain both the latitude and longitude of Sputnik Planitia, as well as the fact that the ices exist in a basin, several other models were also presented in the December 1, 2016 issue of the journal Nature.

The issue with this process, however, is the fact that some of the existing fatty acids get replaced with trans fatty acids.

Setting aside issues of casting and approach, the fact that this film exists, and if this film does well, that means one very important thing: there can be others.

Some leaders may take personally the fact that a race problem exists in a school, or they might see it as a reflection of the person pointing out the issue.

That means that as soon as the policy is issued, a small portion of the cost is considered «earned» based on the fact that the policy existed at all.

This issue is very common — in fact, problems arising from the stress of introducing a new cat to existing cats are some of the most common reasons for cats being returned to Cats Protection adoption centres after homing.

Nothwithstanding the fact that there are a number of people within the UKIP fold who do take issue with the consensus proper, even they would identify a greater problem existing with the excesses of environmental alarmism.

The SJC rejected plaintiff's contention that a genuine issue of material fact exists concerning whether the BHA's various verbal assurances to her mother about the condition of the leased premises were the kind of «explicit and specific assurances of safety or assistance» contemplated under G.L. c. 258, § 10 (j)(1).

On appeal, the workers argued that there existed a genuine issue of material fact related to whether Zurich owed them a duty of care, and thus granting summary judgment in Zurich's favor was in error.

To prevail on summary judgment, the defendant is required to demonstrate that no genuine issue of material fact exists and the undisputed facts, when viewed in a light most favorable to the plaintiff, require judgment for the defendant as a matter of law.

The court described the issue as one of «retrospective» application, mistakenly in my view, since the teacher had in fact been charged under regulations that did not exist when the conduct occurred.

CONCLUSION For the reasons set forth above, and because no issue of material fact exists for determination by a jury, it is axiomatic that summary judgment for Defendant should be granted.

The court continued, explaining that «a genuine issue of material fact exists where facts concerning an issue that would dispose of the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting inferences on such an issue.»

Secondly, the plaintiffs assert genuine issues of material fact exist regarding whether the step down presented a unique, special hazard....

The record contains sufficient evidence of a dangerous condition to create genuine issues as to material facts regarding both whether a dangerous condition existed and whether Wal - Mart had constructive notice of the dangerous condition.

2008)-- Denial of manufacturer defendant's motion for summary judgment in cases arising from explosion at facility in Groton, Connecticut on grounds that there existed genuine issues of fact as to product liability and recklessness counts of case against manufacturer based on its claimed failure to account for and disclose relevant safety and storage information of risks involved in the transport and storage of chemical reagent at ambient temperatures.

Imperial Cancer Research Fund v Ove Arup [2009] All ER (D) 282 (Jun); FG Hawkes v Beli Shipping [2009] All ER (D) 207 (Jul); and Sodastream v Coates [2009] All ER (D) 22 (Aug): while CPR 7.6 (2) does not impose a threshold set of conditions, nonetheless those requirements will always be relevant to the exercise of discretion on such an application, but the fact that the conditions are not satisfied is not necessarily determinative of the outcome of a CPR 7.6 (2) application; whether the claim has become statute barred since the date on which the claim form was issued is a matter of considerable importance, since a time extension would disturb the entitlement of the potential defendant to be free of the possibility of any claim; whether the claimant was reliant on further information which had not yet been forthcoming so as to determine whether or not a viable claim existed, is a relevant consideration.

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.

At that time, disputes involving numerous contested facts, and particularly cases where credibility issues existed between the parties, would rarely be dealt with by means of summary judgment.

The Federal Arbitration Act (the Act) makes arbitration agreements «valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract,» 9 U.S.C. ¶ 2, establishes an equal - treatment principle: A court may invalidate an arbitration agreement based on «generally applicable contract defenses,» but not on legal rules that «apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue,» AT&T Mobility, LLC v. Concepcion, 563 U.S. 333, 339.

[64] Dr. Laidlow can not be faulted for testifying that there is no way to know if the accident in fact caused one or more tears to the wall of the plaintiff's lumbar disc — no images exist to show the state of her disc in intimate detail immediately before or immediately after the accident, and no physical examination short of a biopsy could have illuminated that issue for him.

In their submission to Supreme Court case addressing issues of causation and Workers Compensation Appeals Tribunal jurisdiction, IAVGO and ONIWG argue that scientific certainty is not required (and in fact definitive scientific evidence on work - related causation rarely exists).

Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8 (34645) Summary judgment may not be granted where a genuine issue for trial exists; summary judgment is OK where: (1) the judge can make the necessary findings of fact, (2) can apply the law to the facts (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

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