A fatally flawed motion for summary judgment in lieu of complaint.

Practice point:  The plaintiffs commenced this action to recover on a promissory note by motion for summary judgment in lieu of complaint pursuant to CPLR 3213. However, they made the motion returnable on a date prior to the expiration of the time within which the defendant had to appear in the action, which was a fatal jurisdictional defect.  The Appellate Division determined that the Supreme Court properly granted that branch of the defendant's motion which was to dismiss the action.

Student note:   The Appellate Division will not consider an appellant's contentions that are raised for the first time on appeal.

Case:  Bhanti v. Jha, NY Slip Op 04166 (2d Dep't June 1, 2016)

Here is the decision. 

Monday's issue:  An ineffective employment agreement and post-termination commissions.

The homeowner exemption from liability under the Labor Law.

Practice point:  The Appellate Division reversed, and directed dismissal in the action where plaintiff's decedent died after falling to the ground while working on the roof of a house owned by defendants. The sole issue at trial was whether defendants' house was a one- or two-family dwelling subject to the homeowner exemption from liability under Labor Law §§ 240(1) and 241(6). The Appellate Division found that the evidence established, as a matter of law, that the house was, at most, a two-family dwelling, and that, adcordingly, defendants are entitled to judgment in their favor.

The applicability of the homeowner exemption is determined by a site and purpose test, which hinges upon the site and the purpose of the work and which must be employed on the basis of the homeowners' intentions at the time of the injury. Here, the evidence established that, at the time of the accident, defendants' house was a two-family residential home with a basement apartment, where a family friend lived, and three upper floors, which defendants shared with an adult child and two grandchildren. Defendants did not receive any rental income. That three families, two of which are related, lived in the home is insufficient to raise an issue of fact as to whether the home was a three-family dwelling. Nor do the notices of property value from the New York City Department of Finance raise an issue as to whether defendants intended to use the home as a three-family dwelling, particularly given uncontradicted testimony regarding the use and layout of the home.

Student note:  It is of no consequence that plaintiff refers to the top floor of the home as an "apartment."  She points to no evidence that it contained anything other than two bedrooms, which were occupied by defendants' grandchildren.

Case:  Del Carnen Diaz v. Bocheciamp, NY Slip Op 04305 (1st Dep't June 2, 2016)

Here is the decision.

Tomorrow's issue:  A fatally flawed motion for summary judgment in lieu of complaint.

An appeal dismissed.

Practice point:  The Appellate Division dismissed the appeal from an order which, following a summary jury trial, denied plaintiff's motion for a mistrial and dismissed the case. Plaintiff's posttrial motion, although framed as a motion for a mistrial based on an inconsistent verdict, in essence sought to set aside the jury's verdict as against the weight of the evidence, and is therefore prohibited by the summary jury trial rules, which the parties agreed to follow.

Student note:  Those same rules prohibit appeals.

Case:  Rodriguez v. Baranek, NY Slip Op 04303 (1st Dep't June 2, 2016)

Here is the decision.

Tomorrow's issue:  The homeowner exemption from liability under the Labor Law.

An injury at the gym.

Practice point:  The Appellate Division affirmed the dismissal of the complaint in this action where plaintiff was injured while weightlifting at Equinox with an Equinox personal trainer. Equinox submitted evidence showing that plaintiff was an experienced weightlifter, that he understood the techniques involved and the inherent risks in the sport from publications, and from his personal training sessions, that he knew and appreciated the 230 to 240 pounds of weight the personal trainer had set up on his barbell for a single, bench press to close out the training session, and that he elected to attempt the bench press when the trainer encouraged him following plaintiff's brief questioning of the amount of weight. Such evidence established that plaintiff appreciated the risks, including the weight to be lifted, and that he voluntarily assumed the common and inherent risks associated with the sport.

Student note:  Plaintiff's testimony that the personal trainer engaged in conversations with plaintiff and two other trainers at the time plaintiff questioned his ability to lift the weight is insufficient, absent speculative assumptions, to raise a factual issue as to whether the conversations continued during the actual attempted lift.

Case:  Butt v. Equinox 63rd St., Inc., NY Slip Op 04121 (1st Dep't May 31, 2016)

Here is the decision.

Tomorrow's issue:  An appeal dismissed.

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.