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PARTIES HAD CONSENTED TO PROCEDURES WHICH DEVIATED FROM THE CPLR, SUMMARY JUDGMENT MOTIONS, ALTHOUGH UNTIMELY UNDER THE CPLR, SHOULD HAVE BEEN DEEMED TIMELY (FIRST DEPT).

The First Department, reversing Supreme Court, noted that the parties, through stipulations, had consented to procedures which deviated from the CPLR. Therefore the summary judgment motions, although untimely under the CPLR, should have been deemed timely:

Prior court orders and stipulations between the parties show that the parties, with the court’s consent, charted a procedural course that deviated from the path established by the CPLR and allowed for defendants’ filing of this round of summary judgment motions more than 120 days after the filing of the note of issue … . Thus, the motions were timely, and we remand the matter to the motion court for a full consideration of their merits … . Reeps v BMW of N. Am., LLC, 2018 NY Slip Op 02907, First Dept 4-26-18

​CIVIL PROCEDURE (PARTIES HAD CONSENTED TO PROCEDURES WHICH DEVIATED FROM THE CPLR, SUMMARY JUDGMENT MOTIONS, ALTHOUGH UNTIMELY UNDER THE CPLR, SHOULD HAVE BEEN DEEMED TIMELY (FIRST DEPT))/STIPULATIONS (CIVIL PROCEDURE, PARTIES HAD CONSENTED TO PROCEDURES WHICH DEVIATED FROM THE CPLR, SUMMARY JUDGMENT MOTIONS, ALTHOUGH UNTIMELY UNDER THE CPLR, SHOULD HAVE BEEN DEEMED TIMELY (FIRST DEPT))

QUESTION OF FACT WHETHER OWNERS-OCCUPIERS OF A BUILDING UNDER CONSTRUCTION ARE LIABLE FOR A FALLING OBJECT INJURY TO A SIDEWALK PEDESTRIAN (FIRST DEPT).

The First Department determined there was a question of fact whether the owner of a building could be liable for injury to a sidewalk pedestrian caused by an object that fell from the building (which was under construction):

Plaintiff Joseph Kosakowski was a pedestrian on the sidewalk adjacent to a building owned and occupied by the Broadway defendants, which was undergoing construction, when he was struck by a piece of sheet metal that fell from above. Under the circumstances presented, issues of fact exist as to whether the Broadway defendants can be held liable for plaintiff’s injuries based upon the nondelegable duty not to cause harm to those traveling on the nearby public sidewalk … . Kosakowski v 1372 Broadway Assoc., LLC, 2018 NY Slip Op 02753, First Dept 4-24-18

​NEGLIGENCE (FALLING OBJECTS, QUESTION OF FACT WHETHER OWNERS-OCCUPIERS OF A BUILDING UNDER CONSTRUCTION ARE LIABLE FOR A FALLING OBJECT INJURY TO A SIDEWALK PEDESTRIAN (FIRST DEPT))/FALLING OBJECTS (NEGLIGENCE, QUESTION OF FACT WHETHER OWNERS-OCCUPIERS OF A BUILDING UNDER CONSTRUCTION ARE LIABLE FOR A FALLING OBJECT INJURY TO A SIDEWALK PEDESTRIAN (FIRST DEPT))/PEDESTRIANS (FALLING OBJECTS, NEGLIGENCE, QUESTION OF FACT WHETHER OWNERS-OCCUPIERS OF A BUILDING UNDER CONSTRUCTION ARE LIABLE FOR A FALLING OBJECT INJURY TO A SIDEWALK PEDESTRIAN (FIRST DEPT))

PLAINTIFF, WHO FELL FROM AN UNSECURED LADDER, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CLAIM, THERE WAS A QUESTION OF FACT ON THE LABOR LAW 241(6) CAUSE OF ACTION WHICH ALLEGED THE LADDER SLIPPED ON A WET FLOOR (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff, who fell from an unsecured ladder, was entitled to summary judgment on his Labor Law 240(1) claim. The court further found there was an issue of fact on plaintiff’s Labor law 241(6) claim because of evidence the ladder slipped on a wet floor:

Plaintiff established prima facie a violation of Labor Law § 240(1) through his testimony that he was caused to fall when the unsecured ladder on which he was standing suddenly slipped out from under him … .

In opposition, defendant failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of the accident. There is no evidence in the record that there were other readily available safety devices that would have been adequate for plaintiff’s work … . In addition, defendant’s expert’s opinion that the accident was caused by plaintiff’s misuse of the ladder was entirely speculative, since it was based on his visit to the accident site almost two years after the accident occurred … .

Defendant also failed to show that plaintiff disregarded specific instructions not to use the ladder or do the work he was performing at the time of the accident … . Plaintiff’s coworker’s deposition testimony establishes that plaintiff was not given any such instructions before he ascended the ladder. The coworker’s subsequent affidavit, which conflicts with his deposition testimony on this issue, creates only a feigned issue of fact … .

Summary dismissal of the Labor Law § 241(6) claim predicated on an alleged violation of Industrial Code (12 NYCRR) § 23-1.21(b)(4)(ii) is precluded by an issue of fact as to whether the accident was caused by a wet condition of the floor at the time that the ladder slipped out from underneath plaintiff … . Tuzzolino v Consolidated Edison Co. of N.Y., 2018 NY Slip Op 02755, First Dept 4-24-18

​LABOR LAW-CONSTRUCTION LAW (PLAINTIFF, WHO FELL FROM AN UNSECURED LADDER, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CLAIM, THERE WAS A QUESTION OF FACT ON THE LABOR LAW 241(6) CAUSE OF ACTION WHICH ALLEGED THE LADDER SLIPPED ON A WET FLOOR (FIRST DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF, WHO FELL FROM AN UNSECURED LADDER, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CLAIM, THERE WAS A QUESTION OF FACT ON THE LABOR LAW 241(6) CAUSE OF ACTION WHICH ALLEGED THE LADDER SLIPPED ON A WET FLOOR (FIRST DEPT))

CHARACTER IN A MOVIE BASED UPON A SHORT STORY WAS IDENTIFIABLE AS PLAINTIFF, THE COMPLAINT STATED CAUSES OF ACTION FOR DEFAMATION AGAINST THE MAKERS OF THE MOVIE (FIRST DEPT).

The First Department determined the complaint by plaintiff, the ex-husband of the writer, Katha Pollitt, stated causes of action for defamation and the movie defendants’ motion to dismiss was properly granted. The short story, written by Katha Pollitt, on which defendants’ movie was based, referred to Pollitt’s lover as a philanderer and womanizer, but described Pollitt’s ex-husband (plaintiff) as someone with whom Pollitt got on very well and an excellent father. Plaintiff alleged the references in the movie to the main character’s ex-husband as an adulterer and philanderer were defamatory because the main character was identifiable as Katha Pollitt and plaintiff was Pollitt’s only ex-husband:

Plaintiff sufficiently pleads that defamatory statements made about Wendy’s ex-husband, in the trailer, are “of and concerning” him … . The trailer, which proclaims itself to be “Based on a True Story,” is based upon, and shares a title with the article, linking the main character, Wendy, to Ms. Pollitt, and by extension, Wendy’s ex-husband Ted to plaintiff. Wendy and Pollitt are middle-aged, female writers learning to drive in Manhattan, who formerly relied on an ex-husband to drive them and have a daughter. As relates to the story, plaintiff’s salient characteristic is that he is the only ex-husband of the article’s author, which distinctive trait links him indelibly to Ted, the only former spouse depicted in the trailer … .

At this early stage of the litigation, defendants failed to establish that plaintiff was a public figure or that this was a matter of public concern, to which the “actual malice” standard applies… , or that the subject matter of the trailer is within the sphere of legitimate public concern … . Cohen v Broad Green Pictures LLC, 2018 NY Slip Op 02757, First Dept 4-24-18

​DEFAMATION (CHARACTER IN A MOVIE BASED UPON A SHORT STORY WAS IDENTIFIABLE AS PLAINTIFF, THE COMPLAINT STATED CAUSES OF ACTION FOR DEFAMATION AGAINST THE MAKERS OF THE MOVIE (FIRST DEPT))/MOVIES (DEFAMATION, CHARACTER IN A MOVIE BASED UPON A SHORT STORY WAS IDENTIFIABLE AS PLAINTIFF, THE COMPLAINT STATED CAUSES OF ACTION FOR DEFAMATION AGAINST THE MAKERS OF THE MOVIE (FIRST DEPT))

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EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendants’ motion for summary judgment, based upon the emergency doctrine, should not have been granted in this “sudden stop” bus-passenger injury case. The defendants alleged that the bus driver reacted to an emergency when a car in front of the bus stopped suddenly. However, the emergency doctrine does not usually apply in this situation:

Defendants contend that the driver of the bus on which plaintiff was a passenger was not negligent in braking to a sudden, hard stop that allegedly caused plaintiff to be injured, but reacted reasonably to the sudden stop of a car in front of the bus. However, the emergency doctrine is typically not available to the rear driver in a rear-end collision, who is responsible for maintaining a safe distance … . The bus driver’s affidavit demonstrates that he was confronted with a “common traffic occurrence” when the vehicle in front of the bus stopped short … . A factfinder could reasonably conclude that the bus driver was negligent in failing to maintain a safe distance between the bus and the car in front of it (see Vehicle and Traffic Law § 1129[a]) and that his own conduct caused or contributed to the emergency situation … . Contrary to defendants’ contention, a violation of Vehicle and Traffic Law § 1129(a) may be found even where there was no collision … . Vanderhall v MTA Bus Co., 2018 NY Slip Op 02720, First Dept 4-19-18

​NEGLIGENCE (BUS PASSENGER INJURY, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/BUSES (BUS PASSENGER INJURY, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/TRAFFIC ACCIDENTS (BUS, SUDDEN STOP, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/EMERGENCY DOCTRINE (TRAFFIC ACCIDENTS, BUSES, SUDDEN STOP, BUS PASSENGER INJURY, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/VEHICLE AND TRAFFIC LAW (BUSES, SUDDEN STOP, (BUS PASSENGER INJURY, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT)}/REAR-END COLLISIONS BUSES, SUDDEN STOP, (BUS PASSENGER INJURY, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF FELL, WHETHER PLAINTIFF HAD PRIOR NOTICE OF THE CONDITION IS A COMPARATIVE NEGLIGENCE ISSUE THAT DOES NOT PRECLUDE SUMMARY JUDGMENT (FIRST DEPT).

The First Department determined defendant’s motion for summary judgment in this “water on floor” slip and fall case was properly denied. The defendant did not demonstrate it did not create or have notice of the condition. The fact that plaintiff may have had prior awareness of the condition was a comparative negligence issue that does not preclude summary judgment:

Defendant failed to sustain its prima facie burden of showing that it did not create or have notice of the puddle of water in front of a nurses’ station in the emergency room. Although its operations manager testified to general cleaning and inspection procedures, he did not state that they were followed on the day of the accident, did not know if he worked that day, and did not know when the area was last inspected … .

Defendant’s argument that plaintiff’s negligence was the sole proximate cause of the accident in that she admitted that she saw the puddle several times before she fell, is unavailing. Plaintiff testified that she did not see the water immediately prior to the fall as she was looking straight ahead. Plaintiff did not deliberately undertake a course of action severing the nexus between defendant’s alleged negligence and her injury … . Plaintiff’s prior awareness of the water condition does not require dismissal of the complaint because it is relevant only to the issue of her comparative negligence … . Socorro v New York Presbyt. Weill Cornell Med. Ctr., 2018 NY Slip Op 02723, First Dept 4-19-18

​NEGLIGENCE (SLIP AND FALL, DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF FELL, WHETHER PLAINTIFF HAD PRIOR NOTICE OF THE CONDITION IS A COMPARATIVE NEGLIGENCE ISSUE THAT DOES NOT PRECLUDE SUMMARY JUDGMENT (FIRST DEPT))/SLIP AND FALL (DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF FELL, WHETHER PLAINTIFF HAD PRIOR NOTICE OF THE CONDITION IS A COMPARATIVE NEGLIGENCE ISSUE THAT DOES NOT PRECLUDE SUMMARY JUDGMENT (FIRST DEPT))/NOTICE (SLIP AND FALL, DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF FELL, WHETHER PLAINTIFF HAD PRIOR NOTICE OF THE CONDITION IS A COMPARATIVE NEGLIGENCE ISSUE THAT DOES NOT PRECLUDE SUMMARY JUDGMENT (FIRST DEPT))/COMPARATIVE NEGLIGENCE (SLIP AND FALL, SUMMARY JDUGMENT, DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF FELL, WHETHER PLAINTIFF HAD PRIOR NOTICE OF THE CONDITION IS A COMPARATIVE NEGLIGENCE ISSUE THAT DOES NOT PRECLUDE SUMMARY JUDGMENT (FIRST DEPT))/SUMMARY JUDGMENT (COMPARATIVE NEGLIGENCE, DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF FELL, WHETHER PLAINTIFF HAD PRIOR NOTICE OF THE CONDITION IS A COMPARATIVE NEGLIGENCE ISSUE THAT DOES NOT PRECLUDE SUMMARY JUDGMENT (FIRST DEPT))

DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF A JAGGED EDGE ON A DOOR WHICH WAS ALLEGED TO HAVE INJURED PLAINTIFF’S FOOT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT).

The First Department determined the defendants’ motion for summary judgment in this “injury from a door” case was properly granted. Plaintiff alleged her foot was injured by a jagged edge at the bottom of a door. There had been no complaints about the door or any other injuries caused by the door. The defendants demonstrated that the door was inspected upon installation in 2008, no jagged edge was observed, and the door opened and closed properly:

Defendants established prima facie that they neither created nor had notice of the defect in the door … . They submitted evidence that an outside contractor installed the door in 2008, that defendant Art Farm’s manager inspected it at that time and saw no jagged edge or other visible defect, and tested it to ensure that it opened and closed properly, and that, before plaintiff’s accident, there had been no reports of difficulties with the door or complaints of injuries.

In opposition, plaintiffs failed to raise an issue of fact as to defendants’ creation or notice of the defect. There is no evidence that anyone ever saw or reported the door’s sharp, jagged bottom edge until after plaintiff’s accident, and therefore no evidence that the defect existed long enough for defendants to discover and remedy it … . Nor does the affidavit by plaintiff’s expert engineer raise any issues of fact. The engineer offered no opinion about the alleged jagged edge, which did not exist at the time of his inspection of the door nearly three years after the accident. Samuels v Lee, 018 NY Slip Op 02716, First Dept 4-19-18

​NEGLIGENCE (NOTICE OF DEFECT, DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF A JAGGED EDGE ON A DOOR WHICH WAS ALLEGED TO HAVE INJURED PLAINTIFF’S FOOT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT))/NOTICE (NEGLIGENCE, NOTICE OF DEFECT, DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF A JAGGED EDGE ON A DOOR WHICH WAS ALLEGED TO HAVE INJURED PLAINTIFF’S FOOT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT))/DOORS (NEGLIGENCE, NOTICE OF DEFECT, DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF A JAGGED EDGE ON A DOOR WHICH WAS ALLEGED TO HAVE INJURED PLAINTIFF’S FOOT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT))

SENTENCING JUDGE’S MISINFORMATION ABOUT THE LENGTH OF THE PRISON SENTENCE THE JUVENILE OFFENDER COULD RECEIVE IF SHE FAILED TO MEET THE CONDITIONS IMPOSED BY A PLEA AGREEMENT RENDERED THE PLEA INVOLUNTARY, THE MOTION TO WITHDRAW THE PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined juvenile defendant’s motion to withdraw her guilty plea should have been granted. Defendant, who was 15, in connection with a robbery charge, was offered a youthful offender adjudication and a conditional discharge if she met certain conditions, including school attendance and curfews, for a year. The sentencing judge told defendant she could face 25 years in prison if she did not meet the conditions. Defendant did not meet the conditions. She moved to withdraw her plea because the judge’s statement she could receive a 25 year sentence was wrong. As a juvenile, the maximum possible sentence was 3 1/2 to 10:

Whether a plea is knowing, intelligent and voluntary is dependent upon a number of factors “including the nature and terms of the agreement, the reasonableness of the bargain, and the age and experience of the accused” … . This Court has repeatedly held that defendants must also be made aware of the sentencing parameters so that they may access the propriety of entering a plea of guilty … . To that end, a defendant’s receipt of inaccurate information regarding her possible sentence exposure is clearly a factor which must be considered by the court on a plea withdrawal motion … . …

That defendant was offered an extremely beneficial plea that would allow her to be afforded youthful offender treatment and avoid incarceration does not, as argued by the People, detract from the fact that defendant was misinformed as to her sentencing exposure. Similarly, that defendant received a lesser sentence than what was promised by the court does not remedy the involuntariness of her plea of guilty … . Under the circumstances presented, it cannot be found that defendant would have accepted the promised plea and entered a plea of guilty, if she had been accurately informed of the sentencing parameters. People v Johnson, 2018 NY Slip Op 02566, First Dept 4-17-18

​CRIMINAL LAW (GUILTY PLEA, SENTENCING JUDGE’S MISINFORMATION ABOUT THE LENGTH OF THE PRISON SENTENCE THE JUVENILE OFFENDER COULD RECEIVE IF SHE FAILED TO MEET THE CONDITIONS IMPOSED BY A PLEA AGREEMENT RENDERED THE PLEA INVOLUNTARY, THE MOTION TO WITHDRAW THE PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))/GUILTY PLEA, MOTION TO WITHDRAW (SENTENCING JUDGE’S MISINFORMATION ABOUT THE LENGTH OF THE PRISON SENTENCE THE JUVENILE OFFENDER COULD RECEIVE IF SHE FAILED TO MEET THE CONDITIONS IMPOSED BY A PLEA AGREEMENT RENDERED THE PLEA INVOLUNTARY, THE MOTION TO WITHDRAW THE PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))/SENTENCE (CRIMINAL LAW, MOTION TO WITHDRAW GUILTY PLEA, SENTENCING JUDGE’S MISINFORMATION ABOUT THE LENGTH OF THE PRISON SENTENCE THE JUVENILE OFFENDER COULD RECEIVE IF SHE FAILED TO MEET THE CONDITIONS IMPOSED BY A PLEA AGREEMENT RENDERED THE PLEA INVOLUNTARY, THE MOTION TO WITHDRAW THE PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))/PLEA AGREEMENT CRIMINAL LAW, MOTION TO WITHDRAW GUILTY PLEA, SENTENCING JUDGE’S MISINFORMATION ABOUT THE LENGTH OF THE PRISON SENTENCE THE JUVENILE OFFENDER COULD RECEIVE IF SHE FAILED TO MEET THE CONDITIONS IMPOSED BY A PLEA AGREEMENT RENDERED THE PLEA INVOLUNTARY, THE MOTION TO WITHDRAW THE PLEA SHOULD HAVE BEEN GRANTED (FIRST DEPT))

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ABSENCE OF ADMISSIBLE EVIDENCE OF CONSIDERATION RENDERED ANY WRITTEN OR ORAL GUARANTEE UNENFORCEABLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined a written guarantee to pay the debt of another was not enforceable because no consideration for the guarantee was included in the written guarantee. The 2nd Department further held that an oral guarantee would have been enforceable if it was induced by plaintiff’s promise to hold off on bringing suit.  But only plaintiff’s counsel made that argument unsupported by an affidavit from the plaintiff:

… “[N]othing” in the writing supported the plaintiff’s claim that [she] had agreed to “forbear() pursuing a claim” in exchange for the promised payments]). In the absence of such a binding promise by plaintiff, the guaranty is unenforceable for want of consideration. “Unless both parties to a contract are bound, so that either can sue the other for a breach, neither is bound” … . …

Case law has established that an oral promise to guarantee the debt of another may be enforced, notwithstanding General Obligations Law § 5-701(a)(2), if the plaintiff “prove[s the promise] is supported by new consideration moving to the promisor and beneficial to him and that the promisor has become in the intention of the parties a principal debtor primarily liable” … . Thus, plaintiff could enforce [the] guaranty if she could prove, through parol evidence, that he gave her the guaranty in exchange for her unwritten promise to forbear from suing him until the due date of the guaranty, which would constitute new consideration beneficial to him. Plaintiff fails, however, to offer any admissible evidence (as opposed to unsupported assertions by her counsel) that she actually made such a promise. Reddy v Mihos, 2018 NY Slip Op 02565, First Dept 4-17-18

​CONTRACT LAW (GUARANTEE, ABSENCE OF ADMISSIBLE EVIDENCE OF CONSIDERATION RENDERED ANY WRITTEN OR ORAL GUARANTEE UNENFORCEABLE (FIRST DEPT))/DEBTOR-CREDITOR (CONTRACT LAW, GUARANTEE,  ABSENCE OF ADMISSIBLE EVIDENCE OF CONSIDERATION RENDERED ANY WRITTEN OR ORAL GUARANTEE UNENFORCEABLE (FIRST DEPT))/GUARANTEE (CONTRACT LAW, ABSENCE OF ADMISSIBLE EVIDENCE OF CONSIDERATION RENDERED ANY WRITTEN OR ORAL GUARANTEE UNENFORCEABLE (FIRST DEPT))/CONSIDERATION (CONTRACT LAW, GUARANTEE,  ABSENCE OF ADMISSIBLE EVIDENCE OF CONSIDERATION RENDERED ANY WRITTEN OR ORAL GUARANTEE UNENFORCEABLE (FIRST DEPT))

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NEGLIGENCE CAUSES OF ACTION AGAINST THE DISTRIBUTOR AND RETAIL SELLER OF A SULFURIC ACID DRAIN OPENER, AND THE NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION CAUSE OF ACTION AGAINST THE DISTRIBUTOR, SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court determined negligence causes of action against the distributor (Durst) and (Canje) retailer of a sulfuric acid drain opener, and a negligent discharge of a contractual obligation (launching an instrument of harm) cause of action against the distributor should not have been dismissed:

Because defendant Canje, the retail outlet at which the product was purchased, never agreed to abide by the sale policy of the manufacturer, third-party defendant Hercules Chemical Company, Inc., to restrict the sale of the product to plumbing and/or building professionals, it cannot be held liable for launching a force of harm in negligent discharge of a contractual obligation (see generally Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). However, issues of fact exist whether defendant Durst, the distributor that sold the product to Canje, had a contractual duty to refrain from selling the product to Canje and whether Durst breached this duty and its acknowledged contractual undertakings to take appropriate steps to assure the proper sale and use of the product and to comply with the Seller’s Notice prohibiting sales to non-professionals and the display of the product where it was easily accessible. Durst argues that even if it breached such a duty it did not launch a force or instrument of harm. However, … [t]his case, in which there is evidence that Durst created the unsafe condition by supplying the product without proper safeguards, is … akin to Landon v Kroll Lab. Specialists, Inc. (22 NY3d 1 [2013]), in which the Court of Appeals found that the allegation that the defendant’s negligent testing procedures subjected the plaintiff to legal proceedings stated a cause of action based on the launch of a force of harm. Janiya W.-G. v Smith, 2018 NY Slip Op 02557, First Dept 4-12-18

​NEGLIGENCE (NEGLIGENCE CAUSES OF ACTION AGAINST THE DISTRIBUTOR AND RETAIL SELLER OF A SULFURIC ACID DRAIN OPENER, AND THE NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION CAUSE OF ACTION AGAINST THE DISTRIBUTOR SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/CONTRACT LAW (NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION, NEGLIGENCE CAUSES OF ACTION AGAINST THE DISTRIBUTOR AND RETAIL SELLER OF A SULFURIC ACID DRAIN OPENER, AND THE NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION CAUSE OF ACTION AGAINST THE DISTRIBUTOR SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/ESPINAL (NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION, LAUNCH OF IN INSTRUMENT OF HARM, NEGLIGENCE CAUSES OF ACTION AGAINST THE DISTRIBUTOR AND RETAIL SELLER OF A SULFURIC ACID DRAIN OPENER, AND THE NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION CAUSE OF ACTION AGAINST THE DISTRIBUTOR SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/INSTRUMENT OF HARM, LAUNCH OF (NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION, ESPINAL, NEGLIGENCE CAUSES OF ACTION AGAINST THE DISTRIBUTOR AND RETAIL SELLER OF A SULFURIC ACID DRAIN OPENER, AND THE NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION CAUSE OF ACTION AGAINST THE DISTRIBUTOR SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))

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