CPLR 1411 and assumption of the risk.

Practice point:  The Appellate Division affirmed the denial of a motion to dismiss the complaint in this action for breach of contract, conversion, and fraud. The plaintiff and the defendant are estranged spouses, and the plaintiff sued for damages after the defendant allegedly terminated a joint annuity contract. The plaintiff alleges that the defendant unilaterally exercised the cash value option of the contract, withdrawing all of the funds without his knowledge or consent and leaving him with tax liabilities.

The defendant moved for summary judgment contending that the plaintiff, by agreeing to enter into the joint annuity contract, necessarily assumed the risk of pecuniary injury. However, the doctrine of primary assumption of the risk is a defense to tort recovery involving certain types of athletic or recreational activities, and is inapplicable here.

Student note:  The defense of assumption of risk was abolished in 1975 with the adoption of CPLR 1411. The Court of Appeals has explained that a limited vestige of the doctrine -- called primary assumption of the risk -- survived the adoption of the statute.

Case:  Ballow v. Lincoln Fin. Corp., NY Slip Op 04009 (2d Dep't May 25, 2016)

Tomorrow's issue:  An injury at the gym.

A summary judgment motion denied as untimely.

Practice point:  The Appellate Division reversed, and denied the motion as it was submitted more than 50 days after the expiration of the deadline imposed by the preliminary conference order, and there was no showing of good cause for the late filing, pursuant to CPLR 3212(a).

Student note:  The fact that the action was reassigned to another Justice's part after the preliminary conference order was entered does not require a different result. There was no subsequent order directing a different time-limit or indicating that the time-limits of the new part's rules would supersede the preliminary conference order.

Case:  Waxman v. Hallen Constr. Co., Inc., NY Slip Op 04097 (1st Dep't May 26, 2016)

Here is the decision.

Monday's issue:  CPLR 1411 and assumption of the risk.

A fall at the public library.

Practice point:  The Appellate Division affirmed the granting of the City's motion to dismiss the complaint in this action where plaintiff alleges that he was injured when he tripped and fell at a branch of the New York Public Library. The City is not responsible for injuries resulting from allegedly negligent maintenance of a library building.

Student note:  In light of the dismissal of the complaint as against the City, plaintiff's discovery motion became moot.

Case:  Yon v. City of New York, NY Slip Op 04001 (1st Dep't May 24, 2016)

Here is the decision.

Tomorrow's issue:  A summary judgment motion denied as untimely.

The meaning and extent of coverage of a release.

Practice point:  The Appellate Division affirmed the denial of defendant-physician's motion to dismiss on the grounds that a general release executed by plaintiffs bars plaintiffs' action against him.

The release provides, in pertinent part, that, in exchange for defendant-hospital's payment to plaintiffs of $25,000, plaintiffs released the hospital, its insurer, and their "agents, servants, employees, [and] staff," from "all . . . actions, causes and causes of action . . . which against the [hospital] the plaintiffs ever had." The Appellate Division found that, even if defendant-physician were a member of defendant-hospital's staff, the release is expressly limited only to causes of action that plaintiffs had against defendant-hospital, and does not release any other tortfeasors not expressly named therein from liability for causes of action asserted against them, pursuant to General Obligations Law § 15-108[a]. 

Student note:  The meaning and extent of coverage of a release necessarily depend, as in the case of contracts generally, upon the controversy being settled and upon the purpose for which the release was actually given.  A release may not be read to cover matters which the parties did not desire or intend to dispose of.

Case:  Linn v. New York Downtown Hosp., NY Slip Op 03992 (1st Dep't May 24, 2016)

Here is the decision.

Tomorrow's issue: A fall at the public library.

A foreign corporation's principal place of business and venue.

Practice point:  The Appellate Division reversed, and granted defendant's motion to change venue from Bronx County to Westchester County, pursuant to CPLR 510(1).

In support of its motion, defendant, a foreign corporation, submitted a certified copy of its application for authority to do business filed with the Secretary of State in which it stated that its principal place of business "is to be located" in New York County.  Defendant's designation of New York County as its principal place of business in the application for authority is controlling for venue purposes. Contrary to plaintiff's arguments, even if defendant does not actually have an office in New York County, and although it has notified the Department of State to forward process to an address in Bronx County, the designation made by defendant in its application for authority still controls for venue purposes.

Student note:  Defendant's choice of Westchester County, where plaintiff resides and where the accident took place, as the place for trial is proper.

Case:  Crucen v. Pepsi-Cola Bottling Co. of N.Y., Inc., NY Slip Op 03968 (1st Dep't May 19, 2016)

Here is the decision.

Tomorrow's issue:  The meaning and extent of coverage of a release.

Memorial Day Weekend.

Vacating a note of issue, and a jury demand.

Practice point:  The Appellate Division affirmed the denial of plaintiff's motion to vacate the note of issue or, in the alternative, for a jury trial.  The motion was untimely as plaintiff brought 15 months after the note of issue was filed. In addition, plaintiff's speculative and unsubstantiated claims of defendants' forgery, spoliation, and obstruction of discovery fall short of the stringent standard of showing unusual and unanticipated circumstances subsequent to the filing of the note of issue that would otherwise justify granting the motion.

Student note:  Plaintiff failed to file a jury demand within 15 days of the filing of the note of issue, and did not provide an excuse for her failure to do so. As a result, she waived any right she may have had to a jury trial, pursuant to CPLR 4102[a].

Case:  Jia Wang v. Chih Shien Kang, NY Slip Op 03980 (1st Dep't May 19, 2016)

Here is the decision.

Monday:  Court holiday.

An action to foreclose a mortgage.

Practice point:  To establish a prima facie case in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default.  Where the plaintiff's standing is placed in issue by a defendant, the plaintiff must prove its standing as part of its prima facie showing. A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is either the holder or assignee of the underlying note at the time the action is commenced.

Student note:  Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation.

Case:  Flagstar Bank, FSB v. Mendoza, NY Slip Op 03849 (2d Dep't May 18, 2016)

Here is the decision.

Tomorow's issue:  Vacating a note of issue, and a jury demand.

A fall, summary judgment, and the admissibility of affidavits.

Practice point:  The Appellate Division reversed, and granted defendant's motion dismissing the complaint in this action where plaintiff alleges that he was injured when he fell down the stairs in defendants' building.

Defendants established their entitlement to judgment as a matter of law by submitting plaintiff's deposition testimony where he stated that while climbing the subject stairs, he suddenly felt dizzy and weak, heard the "noise of a paper," and remembered nothing else until he later awoke in the hospital. He was twice asked whether he knew, or ever learned, what caused him to fall, and each time answered that he did not. Nowhere else in his testimony did plaintiff identify the cause of his fall.

Student note:  Plaintiff's affidavit, where he claimed that he slipped and fell on paper restaurant menus strewn on defendants' stairs, was inadmissable, as plaintiff testified he neither spoke, read nor wrote in English, yet his affidavit was unaccompanied by a translator's affidavit attesting to its accuracy, as required by CPLR 2101(b).

Case:  Peralta-Santos v. 350 W. 49th St. Corp., NY Slip Op 03966 (1st Dep't May 19, 2016)

Here is the decision.

Tomorrow's issue:  An action to foreclose a mortgage.

A school's duty to supervise.

Practice point:  A school owes a duty to adequately supervise the students in its care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision.

Student note:  In determining whether the duty has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, the third-party acts could reasonably have been anticipated.

Case:  Fernandez v. City of Yonkers, NY Slip Op 03847 (2d Dep't May 18, 2016)

Here is the decision.

Tomorrow's issue:  A fall, summary judgment, and the admissibility of affidavits.

CPLR 5015 and vacating a default.

Practice point:  Where a defendant seeks to vacate a default under both CPLR 5015(a)(1), excusable default, and (a)(4), lack of jurisdiction, the court will first determine whether it has personal jurisdiction over the defendant, as, if it does not, it need not determine whether the default is excused.

 Student note:  A determination under (a)(4) requires no discretion, while (a)(1) requires the court to exercise its discretion.

Case:  Wells Fargo Bank, N.A. v. Jones, NY Slip Op 03838 (1st Dep't May 17, 2016)

Here is the decision.

Tomorrow's issue:  A school's duty to supervise.