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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).

The First Department, in a full-fledged opinion by Justice Singh, reversing Supreme Court, determined the counterclaims by defendant subcontractor, Nastasi, in this breach of a construction contract action, should not have been dismissed. The central issue was whether the one-year contractual statute of limitations was enforceable. Because the statute could be triggered by the failure of the owner to pay the plaintiff general contractor, Turner, a circumstance over which the defendant subcontractor, Nastasi, had no control, there was a question of fact whether the one-year limitations period was reasonable:

The relevant question when deciding whether a limitations period is enforceable is whether and when the damages were objectively ascertainable … . A contractual limitations period is unenforceable without a concrete determination of damages accrual … .

Here, the provisions setting a one-year limitation period for claims arising out of the contracts between Turner and Nastasi are reasonable on their face. However, the contracts also provide that payments by the owner are conditions precedent to any sums owed by Turner to Nastasi. As observed in D&S Restoration, it was neither fair nor reasonable to impose such a condition precedent, which was not within Nastasi’s control, but had the capability of nullifying its claim (D&S Restoration, 160 AD3d at 926).

… [T]he intent of the owner should not govern the interplay of the two provisions. Such a holding will unreasonably permit a party to choose to stay silent on the issue of owner payment unless it suited them, and unilaterally set the accrual date for the claim. Turner Constr. Co. v Nastasi & Assoc., Inc., 2020 NY Slip Op 08024, First Dept 12-29-20

 

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PLAINTIFFS STATED CAUSES OF ACTION FOR VIOLATIONS OF THE SECURITIES ACT BASED UPON ALLEGEDLY MISLEADING INFORMATION IN THE SECONDARY PUBLIC OFFERING (SPO) (FIRST DEPT). ​
ALTHOUGH PLAINTIFF FELL FROM THE SCAFFOLDING SYSTEM CONSTRUCTED BY SWING, A SUBCONTRATOR, PLAINTIFF’S LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION AGAINST SWING SHOULD HAVE BEEN DISMISSED; SWING WAS NOT A CONTRACTOR OR OWNER, OR A CONTRACTOR’S OR OWNER’S STATUTORY AGENT, WITHIN THE MEANING OF THE STATUTES (FIRST DEPT).
QUESTIONS OF FACT ABOUT THE CAUSE OF PLAINTIFF’S FALL AND DEFENDANT’S CONSTRUCTIVE NOTICE PRECLUDED THE AWARD OF SUMMARY JUDGMENT TO THE DEFENDANT IN THIS STAIRWAY SLIP AND FALL CASE (FIRST DEPT). ​
FAMILY COURT SHOULD NOT HAVE DISMISSED MOTHER’S PETITION FOR CUSTODY MODIFICATION WITHOUT HOLDING A HEARING AND INTERVIEWING THE CHILD.
PLAINTIFF DEMONSTRATED THE SCAFFOLD FROM WHICH HE FELL DID NOT HAVE GUARDRAILS; HIS MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).
GENERAL BUSINESS LAW 349 (DECEPTIVE BUSINESS PRACTICES) CAUSE OF ACTION PROPERLY SURVIVED THE MOTION TO DISMISS AND THE GENERAL BUSINESS LAW 340 (RESTRAINT OF TRADE) CAUSE OF ACTION SHOULD HAVE SURVIVED IN THIS FRAUD ACTION INVOLVING DIAMOND APPRAISALS (FIRST DEPT).
RES IPSA LOQUITUR NEEDN’T BE ALLEGED IN THE NOTICE OF CLAIM OR THE COMPLAINT BECAUSE IT IS NOT A THEORY OF LIABILITY, IT IS AN EVIDENTIARY RULE; NOTICE OF A DANGEROUS CONDITION CAN BE INFERRED UNDER THE RES IPSA LOQUITUR DOCTRINE (FIRST DEPT).
PLAINTIFF WAS SHOT INSIDE DEFENDANT’S BUILDING, DEFENDANT LANDLORD DEMONSTRATED IT DID NOT HAVE NOTICE OF AN ALLEGED BROKEN LOCK, THE EVIDENCE DID NOT DEMONSTRATE THE ASSAILANT WAS AN INTRUDER AS OPPOSED TO AN INVITED GUEST, AND THERE WAS EVIDENCE PLAINTIFF WAS THE VICTIM OF A TARGETED ATTACK, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

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