Dissent

Release and Discharge

Johnson v Lebanese Am. Univ., 2011 NY Slip Op 03658 (App. Div. 1st 2011)

While the fact that plaintiff was not advised to consult with counsel is not dispositive of the enforceability of the Release (Skluth, 163 AD2d at 107), defendants' tying of the payment to plaintiff's return of the Release certainly had a bearing on plaintiff's opportunity to consult counsel. As Supreme Court recognized, the opportunity to consult counsel is at least a factor to be considered when analyzing the volition with which a party entered into a contract (see id.). However, with the payment depending on plaintiff's return of the signed Release it can hardly be said, as the court did, that plaintiff had "ample" opportunity to consult an attorney before signing the document.

For the foregoing reasons, we find that issues of fact exist as to whether plaintiff intended to relinquish employment discrimination claims when he executed the Release. Accordingly, Supreme Court erred in dismissing the complaint.

There is a dissent.

Moot?

E-Z Eating 41 Corp. v H.E. Newport L.L.C., 2011 NY Slip Op 03652 (App. Div., 1st 2011)

Given that the time to cure the alleged lease default has expired, and that the E-Z Eating 41 Corp. has surrendered possession of the premises, the orders appealed are presently moot (see Matter of Johnson v Pataki, 91 NY2d 214, 222 [1997]; cf. Automated Ticket Sys., Ltd. v Quinn, 90 AD2d 738, 739 [1982] [dismissing claims for declaratory relief relating to contract; "[t]he contract having expired, all of the rights asserted by plaintiff against defendants have accrued, and plaintiff should seek its remedy in an action at law for damages"] [internal quotation marks omitted]). In addition, there is no indication that the appeal should be excepted from the mootness doctrine (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]).

While the general rule in New York is to simply dismiss an appeal which has been rendered moot, vacatur of an order or judgment on appeal has, in circumstances such as those presented here, been held to be an appropriate exercise of discretion where necessary " in order to prevent a judgment which is unreviewable for mootness from spawning any legal consequences or precedent'" (see Funderburke v New York State Dept. of Civ. Serv., 49 AD3d 809, 811 [2008], quoting Matter of Hearst Corp. v Clyne, 50 NY2d at 718).

There is a long dissent.

CPLR § 3126 and a long dissent

CPLR § 3126 Penalties for refusal to comply with order or to disclose

Savin v Brooklyn Mar. Park Dev. Corp., 2009 NY Slip Op 03502 (App. Div., 2nd, 2009)

The Supreme Court also did not improvidently exercise its discretion in
denying that branch of the appellants' motion which was to vacate the
note of issue filed by the plaintiffs and extend their time to move for
summary judgment. The certificate of readiness contained no
misstatements or material errors and it was the appellants' own
failures to timely comply with court orders and discovery demands that
delayed the completion of discovery (see Lynch v Vollono, 6 AD3d 505; Ford v J.R.D. Mgt. Corp., 238 AD2d 307; Mardiros v Ghaly, 206 AD2d 413, 414).

The bold is mine.

Gibbs v St. Barnabas Hosp., 2009 NY Slip Op 03441(App. Div., 1st, 2009)

The record reflects that defendant Vinces moved to compel plaintiff
to provide a bill of particulars. This motion was withdrawn when
plaintiff served a bill of particulars. Subsequently, Vinces apparently
became dissatisfied with the bill of particulars plaintiff provided to
him. Hence, at a preliminary conference held after service of the bill
of particulars, plaintiff was ordered to provide a supplemental bill of
particulars. Plaintiff does assert that he should have insisted that he
not be required to serve a supplemental bill until after the completion
of discovery, since he was hard-pressed to further particularize his
contentions at that point. In any event, when a supplemental bill was
not furnished according to the schedule set forth in the preliminary
conference order, defendant moved again in that regard, which motion
resulted in the conditional order of preclusion under review.
[*2]

While it is true that
plaintiff did not timely comply with the court-ordered deadlines, the
delay was not lengthy, and defendant Vinces cannot claim prejudice
because of the tardy supplemental bill of particulars that plaintiff
ultimately furnished (see Marks v Vigo, 303 AD2d 306 [2003]).
There is no evidence that plaintiff's inaction was willful,
contumacious, or the result of bad faith. As a result, striking the
complaint as against Vinces would have been an overly drastic remedy
for plaintiff's delay in complying with discovery (see Cooper v Shepherd, 280 AD2d 337 [2001]). That the Court of Appeals in Wilson v Galicia Contr. & Restoration Corp.
(10 NY3d 827 [2008]) upheld Supreme Court's enforcement of an order of
preclusion does not mean that Supreme Court's determination in this
case not to enforce such an order constituted such an abuse of
discretion as to warrant reversal.

McGUIRE, J. (dissenting)

The order on appeal granting defendant Vinces's motion to enforce a
conditional order precluding plaintiff from offering certain evidence
at trial to the extent of imposing a $500 disclosure sanction against
plaintiff should be modified, the conditional order, which became
absolute, should be enforced and the complaint as against Vinces should
be dismissed. Accordingly, I dissent.

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