Doctrine of primary assumption of risk.

Practice point:  Under the doctrine, by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from participation.  By freely assuming a known risk, a plaintiff negates any duty on the part of the defendant to safeguard the plaintiff from the risk.  If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed its duty. However, a plaintiff will not be deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks.

Case:  Hanson v. Sewanhaka Cent. High Sch. Dist., NY Slip Op 07711 (2d Dep't November 8, 2017)

Here is the decision.

A motion to set aside a verdict.

Practice point:  Pursuant to CPLR 4404(a), a court may set aside a verdict and direct that judgment be entered in favor of a party entitled to judgment as a matter of law, or it may order a new trial where the verdict is contrary to the weight of the evidence or in the interest of justice.  A motion to set aside a verdict in the interest of justice encompasses errors in the trial court's rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise. In considering the motion, the trial judge must decide whether substantial justice has been done and whether it is likely that the verdict has been affected. In addition, the judge must look to common sense, experience, and a sense of fairness rather than to precedents in arriving at a decision.

Case:  Duran v. Temple Beth Sholom, Inc., NY Slip Op 07708 (2d Dep't November 8, 2017)

Here is the decision.

Vacating a judgment resulting from fraud.

Practice point:  A party who has lost an action as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action against the party who adduced the false evidence. Instead, the plaintiff's sole remedy is a motion to vacate the judgment.  In an exception to the rule, a party may commence a separate action where the alleged perjury or fraud in the underlying action was merely a means to the accomplishment of a larger fraudulent scheme which was greater in scope than the issues determined in the prior proceeding.

Case:  DeMartino v. Lomonaco, NY Slip Op 07706 (2d Dep't November 8, 2017)

Here is the decision.

A dismissed quantum meruit claim.

The Appellate Division affirmed dismissal, finding no triable issue of fact as to whether plaintiff could have expected compensation from defendants for its services, as the brokerage agreement states otherwise.

Practice point:  Plaintiff presented no evidence of any other express or implied agreement between the parties to show that plaintiff had an expectation of compensation by defendants for her services.

Case:  SPRE Realty, Ltd. v. Dienst, NY Slip Op 07775 (1st Dep't November 9, 2017)

Here is the decision.

Emergeny operations, auto accidents, and statutory privilege.

The Appellate Division affirmed defendants' motion for summary judgment, finding that defendant police officer was operating a police vehicle while performing an emergency operation and did not recklessly disregard the safety of others before the accident happened.

Practice point:  The fact that defendant was mistaken in believing that plaintiff was stopping her vehicle when he passed through the red light does not make his conduct reckless. Defendant testified that, as he approached the intersection, he reduced his speed and looked left and right, and that he was traveling approximately 10 miles above the speed limit when the accident occurred.  Defendant tried to avoid colliding with plaintiff by braking hard and turning the steering wheel to the right upon realizing that plaintiff's vehicle had entered the intersection.

Student note:  The question of whether the police vehicle's lights and siren were activated is immaterial because defendant was not required to activate either of these devices in order to be entitled to the statutory privilege of driving through the red light.

Case:  Lewis v. City of New York, NY Slip Op 07785 (1st Dep't November 9, 2017)

Here is the decision.

CPLR 4401

Practice point: The granting of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party.  In considering the motion, the evidence must be viewed in the light most favorable to the nonmoving party, and the court must afford the nonmoving party every inference which may properly be drawn from the facts presented.

Case:  Canale v. L & M Assoc. of N.Y., Inc., NY Slip Op 07701 (2d Dep't November 8,2017)

Here is the decision.

Statute of limitations as a bar to a malpractice claim.

Practice point:  In seeking to assert the statute of limitations, a moving defendant must demonstrate, prima facie, that the time within which the plaintiff could commence the cause of action has expired. If the movant satisfies its burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable. The continuous representation doctrine may toll the statute.  A prerequisite for the application of the doctrine is that the relationship be continuous with respect to the matter in which the malpractice is alleged.  A general professional relationship involving only routine contact is insufficient.  In addition, the doctrine applies only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim.

Case:  Collins Bros. Moving Corp. v. Pierleoni, NY Slip Op 07586 (2d Dep't November 1, 2017)

Here is the decision.

Court holiday.

Accountants as fiduciaries.

Practice point:  Accountants are not fiduciaries as to their clients except where the accountants are directly involved in managing the client's investments.

Case:  Herrmann v.  CohnReznick LLP, NY Slip Op 07688 (1st Dep't November 2, 2017)

Here is the decision. 

Past consideration.

Practice point:  Past consideration is no consideration and cannot support an agreement because the detriment did not induce the promise.  Since the detriment had already been incurred, it cannot be said to have been bargained for in exchange for the promise.

There is an exception where the past consideration is explicitly recited in a writing. To qualify for the exception, the description of the consideration must not be vague or imprecise, and extrinsic evidence may not be used to assist in understanding the consideration.

Student note:  General Obligations Law (GOL) § 5-1105 states,  "A promise in writing and signed by the promisor or by his agent shall not be denied effect as a valid contractual obligation on the ground that consideration for the promise is past or executed, if the consideration is expressed in the writing and is proved to have been given or performed and would be a valid consideration but for the time when it was given or performed."

Case:  Korff v. Corbett, NY Slip Op 07677 (1st Dep't November 2, 2017)

Here is the decision.

Court holiday.