Oppenheim v. Travelers Insurance

90 A.D.2d 515, 454 N.Y.S.2d 1020, 1982 N.Y. App. Div. LEXIS 18558

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 1982
• Status: Published

Opinion

In an action to recover damages based on a violation of section 340 of the General Business Law, plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Suffolk County (Ford, J.), entered March 3,1981, as is in favor of defendants Travelers Insurance Company and the Nelson Co., and against them, upon the trial court’s grant of their motion to dismiss at the close of the evidence. The appeal brings up for review an order of the same court, dated January 11, 1982, which denied plaintiffs’ motion for a new trial as against Travelers and the Nelson Co. Order reversed, motion granted and the judgment is vacated insofar as it is in favor of defendants Travelers Insurance Company and the Nelson Co., and as between plaintiffs and said defendants, the action is severed and a new trial is granted, with costs to abide the event. The appeal from the judgment is dismissed as academic in light of the aforesaid determination. The newly discovered evidence submitted on plaintiffs’ motion to vacate the judgment insofar as it is in favor of Travelers Insurance Company and the Nelson Co. was sufficient to require a vacatur of the judgment as against those defendants and a direction for a new trial. Lazer, J. P., Mangano, Gibbons and Thompson, JJ., concur.