The doctrine of primary assumption of risk.

Under the doctrine, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks that are inherent in and arise out of the nature of the sport generally and flow from the participation. Inherent risks in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of participation, including risks associated with the construction of the playing surface and any open and obvious condition on it. It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which the injury occurred, so long as the plaintiff is aware of the potential for injury of the mechanism from which the injury results. When a plaintiff assumes the risk of participating in a sporting event, the defendant is relieved of legal duty to the plaintiff; and being under no duty, the defendant cannot be charged with negligence.

Goulet v. Pier 2 Roller Ring at Brooklyn Bridge Park, NY Slip Op 04216 (2d Dep't July 7 2021)

Here is the decision.

Tomorrow's issue:  Real property and the duty of care.

Election of remedies.

Where there is a bona fide dispute as to the existence of a contract, the plaintiff need not elect its remedies and may proceed upon theories of unjust enrichment or quasi-contract.

Emby Hosiery Corp. v. Tawil, NY Slip Op 04214 (2d Dep't July 7, 2021)

Here is the decision.

Tomorrow's issue:  The doctrine of primary assumption of risk.

CPLR 213[4].

An action to foreclose a mortgage is subject to a six-year statute of limitations. Where the mortgage is payable in installments, a separate cause of action accrues for each unpaid installment, and the limitations period begins to run on the due-date of each installment. However, once a mortgage debt is accelerated, the entire amount is due, and the statute of limitations begins to run on the entire debt. Acceleration of a mortgage debt requires an unequivocal overt act, such as the commencement of a foreclosure action which specifically invokes that relief. However, where the acceleration occurred by virtue of the filing of a complaint, the noteholder's voluntary discontinuance of that action constitutes, as a matter of law, an affirmative act of revocation of the acceleration, absent an express, contemporaneous statement to the contrary by the noteholder. 

Citibank, N.A. v. Kletzky, NY Slip Op 04213 (2d Dep't July 7, 2021)

Here is the decision.

Tomorrow's issue:  Election of remedies.

CPLR 3213.

The assertion of a defense based on facts extrinsic to the instrument at issue is insufficient to defeat a motion for summary judgment in lieu of complaint.

Deka Immobilien Inv. GmbH v. Lexington Ave. Hotel, L.P., NY Slip Op 04275 (1st Dep't July 8, 2021)

Here is the decision.

Tomorrow's issue:  CPLR 2314[b].

Email settlements.

The rule in the First Department is that when an attorney hits "Send" with the intention of relaying a settlement offer or acceptance, and the email account is identified in some way as the attorney's own, it is not necessary for the attorney to type his own signature.  However, this does not mean that every email purporting to settle a dispute will be unassailable evidence of a binding settlement. First, because there is a rebuttable presumption that an email from an attorney's account is authentic, a party that claims an email was the product of a hacker may challenge its authenticity. Second, as with all enforceable settlements, an email settlement must set forth every material term. 

Matter of Philadelphia Ins. Indem. Co. v. Kendall, NY Slip Op 04284 (1st Dep't July 8, 2021)

Here is the decision.

Civil contempt.

The Appellate Division affirmed, with costs, the Order which held defendant in civil contempt of court and ordered that he pay a fine of $500 per day until the contempt is purged. Clear and convincing evidence supports the court's entry of the contempt order. The record establishes that defendant disobeyed the plain terms of the court's earlier order requiring compliance with the subpoena, which clearly mandated that he respond to the subpoena "fully, completely, and truthfully" by March 10, 2020. Defendant failed to provide any answers to the subpoena by the deadline, submitting his first responses nearly three months later. When defendant finally did respond to the subpoena in June 2020, he submitted information that was demonstrably incomplete and untruthful. Defendant's reliance on the COVID-19 pandemic as an excuse for his noncompliance is unavailing He was served with the subpoena in June 2019, months before the pandemic. Moreover, not all of the information defendant was ordered to turn over required collection from third parties or outside sources. Finally, his failure to appear at the contempt hearing - despite having been offered the option of attending via videoconference, and being on notice that his failure to appear could result in his arrest - was, in and of itself, sufficient grounds for a finding of contempt.

Sang Cheol Woo v. Spackman, NY Slip Op 04287 (1st Dep't July 8, 2021)

Here is the decision.

Leave to amend.

While a motion for leave to amend should not be granted if the nonmoving party would be prejudiced by the delay, the need for additional discovery does not constitute prejudice sufficient to justify denial of an amendment. Here, the parties do not dispute that depositions have not taken place and discovery is not otherwise complete, and the motion is granted.

322 W. 47th Street HDFC v. Tibaldeo, NY Slip Op 04199 (1st Dep't July 6, 2021)

Here is the decision.

Alter ego liability.

A party seeking to pierce the corporate veil must establish that (1) the owners exercised complete domination of the corporation with respect to the transaction attacked, and (2) the domination was used to commit a fraud or wrong against the plaintiff which resulted in the plaintiff's injury. As a general rule, a claim for alter ego liability is fact-laden and not well-suited for summary judgment.

Arjumand v. LaGuardia Express, LLC, NY Slip Op 04117 (2d Dep't June 30, 2021)

Here is the decision.

CPLR 213[4].

An action to foreclose a mortgage is subject to a six-year statute of limitations which begins to run on the entire debt once the debt is accelerated. Where the maturity of the debt has been validly accelerated by commencement of a foreclosure action, the noteholder's voluntary withdrawal of that action revokes the election to accelerate, absent the noteholder's contemporaneous statement to the contrary.

21st Mtge. Corp. v. Rivera, NY Slip Op 04116 (2d Dep't June 30, 2021)

Here is the decision.

A statute of limitations defense.

The doctrine of equitable estoppel does not bar defendants from asserting the defense since nothing in the record shows that any of their acts contributed to the delay in filing the complaint. In fact, the allegations in the complaint show that plaintiffs had or could have obtained with due diligence all the information they needed to bring an action before the limitations period expired. Neither does the continuing wrong doctrine apply to toll the applicable statute of limitations on the cause of action for an accounting since the actual wrongs on which that cause of action is based are defendants' alleged fraud and breach of contract.

Derringer v. F.G.G. Prods. Inc., NY Slip Op 04187 (1st Dep't July 1, 2021)

Here is the decision.

Yellowstone injunctions.

The plaintiff must demonstrate that (1) it holds a commercial lease; (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease; (3) it requested injunctive relief prior to the termination of the lease; and (4) it can cure the alleged default by any means short of vacating the premises. The First Department interprets the third criterion to require a tenant to move for injunctive relief before the cure period in the landlord's notice expires.

Gap, Inc. v. 170 Broadway Retail Owner, LLC, NY Slip Op 04115 (1st Dep't June 29, 2021)

Here is the decision.