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Cook v. Schiff

Appellate Division of the Supreme Court of New York, First Department
May 11, 1967
28 A.D.2d 514 (N.Y. App. Div. 1967)

Opinion

May 11, 1967


Judgment granting summary judgment to the defendants and dismissing the complaint unanimously affirmed, with one bill of $50 costs and disbursements to the defendants. It is quite possible that the acceptance by the plaintiff of severance payments in three annual installments may, in and of itself, preclude the plaintiff from recovering on his cause of action. Special Term so held in granting summary judgment to the defendants. However, we need not rest our affirmance of the judgment on that ground. The acceptance of the severance pay in installments points strongly to the conclusion that there was no agreement with relation to pension payments as claimed by the plaintiff, and upon which he relies to establish his case. His own testimony in his examination before trial, and the facts as presented, leave no issue to be tried. The plaintiff was in a key executive position with knowledge and possession of all the facts, and he cannot now very well assert that he relied on any statements or promises as he alleged were made to him by the defendant Schiff. Indeed, his testimony conclusively points to the contrary. While on a motion for summary judgment we may not decide issues of fact that are properly presented, yet where it is apparent from the papers that there is no substance to those issues, we deem them as not presenting triable issues and may grant summary judgment despite their presentation. Such is the situation here. Accordingly, the judgment appealed from should be affirmed.

Concur — Botein, P.J., Stevens, Eager and Rabin, JJ.


Summaries of

Cook v. Schiff

Appellate Division of the Supreme Court of New York, First Department
May 11, 1967
28 A.D.2d 514 (N.Y. App. Div. 1967)
Case details for

Cook v. Schiff

Case Details

Full title:LEON H. COOK, Appellant, v. DOROTHY SCHIFF et al., Respondents

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: May 11, 1967

Citations

28 A.D.2d 514 (N.Y. App. Div. 1967)