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CONTRARY TO SUPREME COURT’S RULING, THE PURCHASE CONTRACT DID NOT INCLUDE A CLAUSE LIMITING PLAINTIFF’S REMEDY FOR A BREACH TO RETAINING THE DEPOSIT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the purchase contract did not have a limitation of remedies clause restricting plaintiff’s damages for a breach to retaining the deposit:

A limitation of remedies “will not be implied and to be enforceable must be clearly, explicitly and unambiguously expressed in a contract”… . Indeed, “[s]uch clauses are . . . strictly construed against the party seeking to avoid liability” (id. at 219), and ” a provision must be included in the agreement limiting a party’s remedies to those specified in the contract in order for courts to find that th[o]se remedies are exclusive’ ” … . Here, nothing in the contract stated that plaintiff’s contractual right to retain the deposit upon defendant’s breach was plaintiff’s sole and exclusive remedy for such a breach. The court thus erred in granting the cross motion on that ground … . Lundy Dev. & Prop. Mgt., LLC v Cor Real Prop. Co., LLC, 2020 NY Slip Op 01751, Fourth Dept 3-13-20

 

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ACQUISITION OF CELL PHONE LOCATION DATA, PLACING DEFENDANT NEAR THE MURDER SCENE, DID NOT REQUIRE A WARRANT SUPPORTED BY PROBABLE CAUSE (FOURTH DEPT).
DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT ON THE GROUND THAT THE ISSUING COURT DID NOT HAVE PERSONAL JURISDICTION SHOULD NOT HAVE BEEN DISMISSED EVEN THOUGH THE JUDGMENT HAD BEEN SATISFIED BY A PROPERTY EXECUTION, IF DEFENDANT CAN DEMONSTRATE A LACK OF PERSONAL JURISDICTION, THE JUDGMENT WILL BE A NULLITY (FOURTH DEPT).
A MOTION TO SET ASIDE A JURY VERDICT PURSUANT TO CPL 330.30 (1) MUST BE BASED UPON MATTERS IN THE RECORD; I.E., ISSUES THAT CAN BE RAISED ON APPEAL; HERE THE MOTION WAS BASED ON MATTERS OUTSIDE THE RECORD AND SHOULD HAVE BEEN DENIED ON THAT GROUND (FOURTH DEPT).
DEFENDANT PROPERTY OWNER DEMONSTRATED IT DID NOT CREATE OR HAVE ACTUAL NOTICE OF THE DANGEROUS CONDITION (A DEFECTIVE RAILING ON A SECOND-STORY BALCONY); HOWEVER, THERE WAS A QUESTION OF FACT WHETHER A LETTER FROM THE VILLAGE CODE ENFORCEMENT OFFICER SHOULD HAVE TRIGGERED AN INSPECTION OF THE PROPERTY (FOURTH DEPT).
STATE WATER RESOURCES LAW DID NOT PREEMPT ZONING BOARD’S REQUIRING TOWN APPROVAL BEFORE WATER CAN BE EXTRACTED FOR COMMERCIAL PURPOSES.
IN THE ABSENCE OF A MOTION TO DISMISS THE COMPLAINT BY THE DEFENDANTS, THE JUDGE DID NOT HAVE THE AUTHORITY TO DISMISS THE ACTION ON THE EVE OF TRIAL “IN THE INTEREST OF JUDICIAL ECONOMY” BASED UPON PERCEIVED EVIDENTIARY DEFICIENCIES (FOURTH DEPT).
ALTHOUGH THE DEFENDANT WAS 33 YEARS OLD AND THE JURY OBSERVED HIM, THE PEOPLE’S FAILURE TO PROVE HE WAS OVER 18 AT THE TIME OF THE CRIMES REQUIRED REVERSAL AND DISMISSAL OF TWO COUNTS; THE ERROR WAS NOT PRESERVED; THE COURT CONSIDERED THE ISSUE IN THE INTEREST OF JUSTICE (FOURTH DEPT).
AN UNAVAILABLE WITNESS’S STATEMENT AGAINST PENAL INTEREST CONFESSING TO THE MURDER FOR WHICH DEFENDANT WAS CONVICTED SHOULD HAVE BEEN ADMITTED; NEW TRIAL ORDERED (FOURTH DEPT).

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