Avendano v. Sazerac, Inc.

Appellate Division of the Supreme Court of New York

Avendano v. Sazerac, Inc.

221 A.D.2d 395, 634 N.Y.S.2d 390, 1995 N.Y. App. Div. LEXIS 11965

Appellate Division of the Supreme Court of the State of New York·Decided November 13, 1995·Published·Cited by 3 cases

Opinion

—In an action to recover damages for personal injuries, the defendant Sazerac, Inc. appeals from an order of the Supreme Court, Queens County (Durante, J.), dated July 21, 1994, which granted the plaintiffs motion to strike the ninth affirmative defense in its amended verified answer.

Ordered that the order is reversed, on the law, with costs, and the plaintiffs motion is denied.

The record fails to establish as a matter of law whether or not the plaintiff is in this country legally. Consequently, the Supreme Court erred in dismissing the defendant’s affirmative defense which alleged that the plaintiffs lost earnings, if any, should be reduced because the plaintiff is not in this country legally (see, Collins v New York City Health & Hosps. Corp., 201 AD2d 447; Public Adm’r of Bronx County v Equitable Life Assur. Socy., 192 AD2d 325). Mangano, P. J., Miller, Santucci and Hart, JJ., concur.

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—In an action to recover damages for personal injuries, the defendant Sazerac, Inc. appeals from an order of the Supreme Court, Queens County (Durante, J.), dated July 21, 1994, which granted the plaintiffs motion to strike the ninth affirmative defense in its amended verified answer.

Ordered that the order is reversed, on the law, with costs, and the plaintiffs motion is denied.

The record fails to establish as a matter of law whether or not the plaintiff is in this country legally. Consequently, the Supreme Court erred in dismissing the defendant’s affirmative defense which alleged that the plaintiffs lost earnings, if any, should be reduced because the plaintiff is not in this country legally (see, Collins v New York City Health & Hosps. Corp., 201 AD2d 447; Public Adm’r of Bronx County v Equitable Life Assur. Socy., 192 AD2d 325). Mangano, P. J., Miller, Santucci and Hart, JJ., concur.

Avendano v. Sazerac, Inc., 221 A.D.2d 395, 634 N.Y.S.2d 390, 1995 N.Y. App. Div. LEXIS 11965 (N.Y. Ct. App. 1995).

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221 A.D.2d 395 (Avendano v. Sazerac, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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