The defense of assumption of the risk.

Plaintiff is an experienced tennis coach who was injured while conducting a tennis lesson on a rubber floor area that was damaged with depressions and cracks. Defendant established that plaintiff assumed the risks associated with playing or coaching tennis on this rubber floor area, which was not a tennis court and had open and obvious defects. The defense of assumption of the risk does not require that a plaintiff  foresee the exact manner in which the injury occurs. All that is required is that the plaintiff be aware of the potential for injury of the mechanism from which the injury results. The fact that plaintiff was coaching and not playing is of no consequence. Defendant's motion to dismiss the complaint is granted.

Oetiker v. Hudson Riv. Park Trust, NY Slip Op 07509 (1st Dep't December 29, 2022)

Here is the decision.

Appellate practice.

No appeal lies from the denial of a motion for reargument. In any event, the underlying order granting defendant's motion to dismiss pursuant to CPLR 3211(a)(2) and (7) was entered upon plaintiff's default. Therefore, the proper remedy was for plaintiff to move under CPLR 5501(a) to vacate the default, not to move for leave to reargue.

Aaron v. Kennedy, NY Slip Op 07493 (1st Dep't December 29, 2022)

Here is the decision.

A claim for promissory estoppel.

A plaintiff cannot recover under a cause of action alleging promissory estoppel based on a contract. Here, though, the defendants dispute that there is a contract.  Therefore, at this stage of the litigation, the defendants' basis for dismissal of the promissory estoppel cause of action fails.

Arnone v. Burke, NY Slip Op 07427 (2d Dep't December 28, 2022)

Here is the decision.

A declaratory judgment action.

On a motion to dismiss for failure to state a cause of action, the only question is whether the plaintiff presents a case that invokes the court's jurisdiction to make a declaratory judgment, and not whether the plaintiff is entitled to a favorable declaration. 

General Ins. v. Piquion, NY Slip Op 07500 (1st Dep't December 29, 2022)

Here is the decision.

Tortious interference with contract.

The elements of the cause of action are (1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant's knowledge of that contract; (3)  the defendant's intentional procurement of the third party's breach of that contract, without justification; and (4) damages to the plaintiff.

Arnone v. Burke, NY Slip Op 07427 (2d Dep't December 28, 2022)

Here is the decision.

An easement by prescription.

In order to acquire the easement, it must be shown that its use was hostile, open and notorious, and continuous and uninterrupted for the prescriptive period of 10 years. Where there is clear and convincing evidence that use of the easement was open, notorious, continuous, and undisputed, it is presumed that the use was hostile. The burden then shifts to the opponent of the allegedly prescriptive easement to show that the use was permissive. Permission may be inferred where the relationship between the dominant and servient estates evinced neighborly cooperation and accommodation.

Aboulissan v. Kingsland 79, LLC, NY Slip Op 07426 (2d Dep't December 28, 2022)

Here is the decision.

A claim for aiding and abetting a breach of fiduciary duty.

An essential element of the cause of action is actual knowledge of the breach. To the extent that the complaint alleges constructive knowledge, it is insufficient and will be dismissed.

Continental Indus. Group, Inc. v .Ustuntas, NY Slip Op 07294 (1st Dep't December 22, 2022)

Here is the decision.

Court holiday.

An untimely filing.

The City's submission of its answer two days after the stipulated deadline does not require entry of default against it. The City demonstrated its intent to oppose the petition on the merits by requesting petitioner's agreement to the extension and subsequently filing an answer, and petitioner does not argue that the brief delay prejudiced him.

Matter of Kuza v. New York City Dept. of Fin., NY Slip Op 07297 (1st Dep't December 22, 2022)

Here is the decision.

The doctrine of equitable estoppel.

Invocation of the doctrine requires a showing of deception, fraud, or misrepresentation. The plaintiff cannot invoke the doctrine to prevent the defendant from asserting a statute of limitations defense based on an oral promise to pay the funds at issue in this breach of contract action.

Angeli v. Barket, NY Slip Op 07213 (2d Dep't December 21 2022)

Here is the decision.