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THE RELEASE SIGNED BY PLAINTIFF BEFORE TAKING A MANDATORY COLLEGE FITNESS-EDUCATION COURSE PRECLUDED HER LAWSUIT AGAINST THE COLLEGE ALLEGING INJURIES SUSTAINED TAKING THE COURSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the release signed by the plaintiff precluded her suit against defendant community college (DCC) for alleged injuries sustained in a mandatory fitness education course: The plaintiff enrolled in a wellness and fitness education course, which was a mandatory course that had to be taken as part of her […]

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WHERE, AS HERE, A PARTY IS A DEFENDANT IN ONE ACTION AND A PLAINTIFF IN ANOTHER ACTION, BOTH OF WHICH STE,M FROM THE SAME TRAFFIC ACCIDENT, THE ACTIONS SHOULD BE CONSOLIDATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the two actions stemming from a single traffic accident should have been consolidated. Decedent leased a truck from defendant Travis and had an accident. Decedent sued Travis alleging negligent maintenance of the truck, Travis sued decedent for the damage to the truck. The two actions should have been […]

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THE PARTIAL PAYMENTS MADE TOWARD THE DOWN PAYMENT ON THE REAL ESTATE PURCHASE CONTRACT DID NOT CONSTITUTE PART PERFORMANCE OF THE ALLEGED ORAL MODIFICATION OF THE AGREEMENT; THE STATUTE OF FRAUDS RENDERED THE ALLEGED ORAL MODIFICATION UNENFORCEABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the alleged oral modification of the real estate purchase contract was unenforceable pursuant to he statute of frauds. The original contract called for a $750,000 down payment by a specified date. The payment was not made. Plaintiff argued defendant had orally agreed to take installment payments toward the […]

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IN THIS TRAFFIC ACCIDENT CASE WHERE “SERIOUS INJURY” WAS AN ISSUE, VIDEO SURVEILLANCE OF PLAINTIFF TAKEN BEFORE THE DEPOSITION AND AFTER A DISCOVERY ORDER WAS PRECLUDED FROM BOTH THE SUMMARY JUDGMENT STAGE AND TRIAL; THERE IS NO SPECIFIC DEADLINE FOR PROVIDING VIDEO SURVEILLANCE GATHERED AFTER THE DEPOSITION; THE POST-DEPOSITION VIDEO SURVEILLANCE WAS NOT PRECLUDED (SECOND DEPT).

The Second Department, modifying Supreme Court, in a full-fledged opinion by Justice Dillon, determined that video surveillance of the plaintiff taken prior to the deposition in this traffic accident case, and after a discovery order requiring disclosure of video surveillance had been issued, could not be used in support of a summary judgment motion re: […]

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​ DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION OR DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant did not demonstrate it did not create the dangerous condition and did not demonstrate it did not have constructive notice of the condition. A metal gate, which should have been secured, fell on plaintiff: … [T]estimony, if credited, indicates that the gate was not secured to […]

IN A JUDICIAL DISSOLUTION, IF THE PARTIES CANNOT AGREE ON THE DISPOSITION OF THE ASSETS THE ONLY OPTION IS LIQUIDATION AT A PUBLIC SALE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court did not have the authority to order a sealed-bid auction of the corporate assents in this judicial dissolution case. Because the parties could not agree on the disposition of the assents, under the Business Corporation Law, the only option is liquidation at a public sale: “‘Postdissolution […]

PLAINTIFF, ON THE DAY OF TRIAL, REQUESTED AND WAS GRANTED A DISCONTINUANCE WITHOUT PREJUDICE; PLAINTIFF COULD NOT TAKE ADVANTAGE OF THE SIX-MONTH EXTENSION OF THE STATUTE OF LIMITATIONS AFFORDED BY CPLR 205(A) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the discontinuance of the action without prejudice, which plaintiff requested on the day of trial, did not entitle plaintiff to the six-month extension of the statute of limitations afforded by CPLR 205(a): CPLR 205(a) “extends the time to commence an action after the termination of an earlier related […]

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THE STORE MANAGER TOOK THE TWO CANS OF RED BULL DEFENDANT WAS CARRYING FROM HIM AND TOLD HIM TO LEAVE THE STORE; THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE BURGLARY CONVICTION; AN EXTENSIVE TWO-JUSTICE DISSENT ARGUED OTHERWISE (FIRST DEPT). ​

The First Department, over a two-justice dissent, determined the evidence supported the burglary charge. The defendant was stopped by the store manager carrying two cans of Red Bull. The manager took the cans and defendant left the store. The dissenters argued there was no evidence the defendant intended to leave the store without paying: We […]

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DEFENDANTS IN THIS WET-FLOOR SLIP AND FALL CASE WERE NOT ENTITLED TO SUMMARY JUDGMENT; DEFENDANTS DID NOT DEMONSTRATE WHEN THE AREA WAS LAST INSPECTED BEFORE THE FALL AND THERE WAS EVIDENCE THE MAT AND WARNING SIGN PLACED IN THE AREA WERE INADEQUATE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants were not entitled to summary judgment in this wet-floor slip and fall case. There was no evidence when the area was last inspected prior to fall. And there was evidence the mat and warning sign placed in the area were inadequate: … [D]efendants failed to make a […]

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UNDER THE FACTS, PLAINTIFF CAN ASSERT A CLAIM FOR TORTIOUS INTERFERENCE WITH CONTRACT AGAINST DEFENDANT, EVEN THOUGH BOTH ARE SIGNATORIES TO THE MULTILATERAL CONTRACTS; THE PARTIES HAVE DIFFERENT RIGHTS AND DUTIES UNDER THE CONTRACTS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, determined that, under the facts, plaintiffs should be allowed to state a claim for tortious interference with contract against another signatory to the multilateral agreements: We are asked to decide whether a party to multilateral contracts may be sued by its contracting counterparty for inducing […]

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