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CONTRACT NOT ACTIONABLE BECAUSE IT DID NOT SPELL OUT THE CONSIDERATION FOR A PAST OR EXECUTED PROMISE, DECISION ON A MOTION TO DISMISS DOES NOT BECOME THE LAW OF THE CASE IN A SUBSEQUENT MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined a contract was not actionable because the consideration for a past or executed promise was not spelled out in it. The court noted that a decision on a motion to dismiss does not become the law of the case in a subsequent motion for summary judgment:

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General Obligations Law (GOL) § 5-1105 provides:

“A promise in writing and signed by the promisor or by his agent shall not be denied effect as a valid contractual obligation on the ground that consideration for the promise is past or executed, if the consideration is expressed in the writing and is proved to have been given or performed and would be a valid consideration but for the time when it was given or performed.”

It essentially codifies the notion that “[g]enerally, past consideration is no consideration and cannot support an agreement because the detriment did not induce the promise.’ That is, since the detriment had already been incurred, it cannot be said to have been bargained for in exchange for the promise'”… . However, General Obligations Law § 5-1105 makes an exception where the past consideration is explicitly recited in a writing. To qualify for the exception, the description of the consideration must not be “vague” or “imprecise,” nor may extrinsic evidence be employed to assist in understanding the consideration … . * * *

… “[T]he law of the case doctrine does not apply when a motion to dismiss is followed by a summary judgment motion” … . Korff v Corbett, 2017 NY Slip Op 07677, First Dept 11-2-17

 

CONTRACT LAW (CONTRACT NOT ACTIONABLE BECAUSE IT DID NOT SPELL OUT THE CONSIDERATION FOR A PAST OR EXECUTED PROMISE, DECISION ON A MOTION TO DISMISS DOES NOT BECOME THE LAW OF THE CASE IN A SUBSEQUENT MOTION FOR SUMMARY JUDGMENT (FIRST DEPT))/CIVIL PROCEDURE (DECISION ON A MOTION TO DISMISS DOES NOT BECOME THE LAW OF THE CASE IN A SUBSEQUENT MOTION FOR SUMMARY JUDGMENT (FIRST DEPT))/GENERAL OBLIGATIONS LAW 5-1105  (CONTRACT NOT ACTIONABLE BECAUSE IT DID NOT SPELL OUT THE CONSIDERATION FOR A PAST OR EXECUTED PROMISE, DECISION ON A MOTION TO DISMISS DOES NOT BECOME THE LAW OF THE CASE IN A SUBSEQUENT MOTION FOR SUMMARY JUDGMENT (FIRST DEPT))/CONSIDERATION (CONTRACT LAW, CONTRACT NOT ACTIONABLE BECAUSE IT DID NOT SPELL OUT THE CONSIDERATION FOR A PAST OR EXECUTED PROMISE, DECISION ON A MOTION TO DISMISS DOES NOT BECOME THE LAW OF THE CASE IN A SUBSEQUENT MOTION FOR SUMMARY JUDGMENT (FIRST DEPT))

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THE SORA RISK-LEVEL MOTION COURT SHOULD NOT HAVE RE-OPENED THE HEARING TO AMEND ITS ORIGINAL RISK-LEVEL DETERMINATION; THE CRITERIA FOR A MOTION TO RENEW WERE NOT MET; THE “INHERENT AUTHORITY” TO RE-OPEN APPLIES ONLY WHEN THE ORIGINAL RULING WAS BASED ON A MISTAKE; THE PEOPLE WERE NOT DEPRIVED OF THE OPPORTUNITY TO APPLY FOR AN UPWARD DEPARTURE (FIRST DEPT).
THERE WAS A QUESTION OF FACT WHETHER THE ONE-YEAR STATUTE OF LIMITATIONS IN THE CONTRACT WITH DEFENDANT SUBCONTRACTOR WAS REASONABLE BECAUSE THE RUNNING OF THE STATUTE COULD BE TRIGGERED BY A PARTY OVER WHICH DEFENDANT HAD NO CONTROL (FIRST DEPT).
ALTHOUGH THERE IS NO CAUSE OF ACTION FOR CIVIL CONSPIRACY IN NEW YORK, THE ELEMENTS OF CONSPIRACY, INCLUDING OVERT ACTS, WERE PROPERLY PLED AS PART OF THE FRAUD CAUSE OF ACTION (FIRST DEPT). ​
PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT ON THEIR DEFECTIVE DESIGN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE (FIRST DEPT).
BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW.
DEFENSE COUNSEL, DURING VOIR DIRE, RELIED ON THE PEOPLE’S REPRESENTATION THAT THE COMPLAINANT WOULD NOT TESTIFY, BEFORE OPENING STATEMENTS DEFENSE COUNSEL WAS INFORMED THE COMPLAINANT WOULD TESTIFY, NEW TRIAL ORDERED (FIRST DEPT).
Failure to Make Timely Objections to Invoices Justified Summary Judgment

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