Assumption of the risk.

Under the doctrine of primary assumption of risk, a voluntary participant in a sport or recreational activity is deemed to have consented to the commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of participation. As a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues.

Alfieri v. State of New York, NY Slip Op 00886 (2d Dep't February 21, 2024)

Here is the decision.

Comparative negligence.

In order to be entitled to summary judgment on the issue of a defendant's liability, the plaintiff does not bear the burden of establishing the absence of his own comparative negligence.  However, the issue of the plaintiff's comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence.

Abramov v. Martinez, NY Slip Op 00885 (2d Dep't February 21, 2024)

Here is the decision.

Leave to enter a default judgment.

Pursuant to CPLR 3215, a plaintiff moving for leave to enter a default judgment must file proof of: (1) service of the summons and the complaint; (2) the facts constituting the claim; and (3) the defendant's default. In order to successfully oppose the motion, the defendant must provide a reasonable excuse for the default and demonstrate the existence of a potentially meritorious defense to the action. A corporation's failure to receive copies of process served upon the Secretary of State due to a breach of its own obligation to keep a current address on file with the Secretary of State does not constitute a reasonable excuse for its delay in appearing or answering the complaint, although there is no per se rule. In determining whether a reasonable excuse was demonstrated, a court should consider, among other factors, the length of time for which the address had not been kept current.

Bachvarov v. Khaimov, NY Slip Op 00753 (2d Dep't February 14, 2024)

Here is the decision.

A school's duty of care.

A school has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and it will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. The duty owed derives from the simple fact that the school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians. The standard for determining whether a school has breached its duty is to compare the school's supervision and protection to that of a parent of ordinary prudence, placed in the same situation and armed with the same information.

J.B. v. Monroe-Woodbury Cent. Sch. Dist., NY Slip Op 00752 (2d Dep't February 14, 2024)

Here is the decision.

Attorneys' fees.

Plaintiff-cooperative owner did not establish its right to recover attorneys' fees from defendants under the commercial proprietary lease. Only a prevailing party is entitled to attorneys' fees, and to prevail, the party seeking fees must be successful on the central relief sought. This determination requires an initial consideration of the true scope of the dispute being litigated, followed by a comparison of what was achieved within that scope. Where the outcome of litigation is mixed and the relief awarded is not substantially favorable to either party, neither party can claim to be the prevailing party. Here, the true scope of the dispute includes both plaintiff's claim to recover past due maintenance and defendants breach of contract and negligence counterclaims which seek to recover substantial damages resulting from plaintiff's alleged failure to address and repair the condition causing the foul odors affecting defendants' unit.

49 E. Owners Corp. v. 825 Broadway Realty, LLC, NY Slip Op 00796 (1st Dep't February 15, 2024)

Here is the decision.

Appellate practice.

In reviewing a determination made after a nonjury trial, the Appellate Division's power is as broad as that of the trial court, and it may render a judgment that it finds warranted by the facts, bearing in mind that, in a close case, the trial court had the advantage of seeing and hearing the witnesses. Where the trial court's findings of fact rest, in large measure, on considerations relating to the credibility of witnesses, deference is owed to the trial court's credibility determinations.

Ali v. Rahaman, NY Slip Op 00751 (2d Dep't February 14, 2024)

Here is the decision.

A plaintiff's motion to proceed anonymously.

In determining whether to grant the motion, the court must use its discretion in balancing the plaintiff's privacy interest against the presumption in favor of open trials and against any potential prejudice to the defendant. Among the factors the court should consider are: 1) whether the plaintiff is challenging governmental activity or an individual's actions; 2) whether the plaintiff's action requires disclosure of information of the utmost intimacy; 3) whether identification would put the plaintiff or innocent third-parties at risk of suffering physical or mental injury; 4) whether the defendant would be prejudiced by allowing the plaintiff to proceed anonymously; and 5) the public interest in guaranteeing open access to proceedings without denying litigants access to the justice system.

Doe v. Mesivtha, Inc., NY Slip Op 00614 (2d Dep't February 7, 2024)

Here is the decision.

Requests to re-plead.

Plaintiffs' request to re-plead is denied, as they did not submit an amended pleading or any specific information about the nature of the proposed claims.

Rosenberg v. OSG, LLC, NY Slip Op 00691 (1st Dep't February 8, 2024)

Here is the decision.

Orders of reference.

CPLR 4313 requires that "[u]nless the order of reference otherwise provides, the referee shall forthwith notify the parties of a time and a place for the first hearing to be held." So, unless the order of reference indicates that a hearing is unnecessary, it is error for the referee to issue a report without holding a hearing on notice to the parties. Here, the defendant established that it was entitled to a hearing before the referee issued a report. Accordingly, the Supreme Court properly granted the defendant's cross-motion to reject the referee's report.

Board of Mgrs. of the Poseidon Condominium v. Costantino Prop. Mgt., LLC, NY Slip Op 00608 (2d Dep't February 7, 2024)

Here is the decision.

Indemnification.

A party's right to contractual indemnification depends upon the specific language of the contract. A promise to indemnify will not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances.

Alvarenga v. Castagna Realty Co., Inc., NY Slip Op 00607 (2d Dep't February 7, 2024)

Here is the decision.

Court holiday.