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.

Service of process.

Personal jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been complied with. Here, plaintiff's affidavit evidencing service at defendant's place of business fails to include any proof of mailing as required by CPLR 308(2), and no evidence of compliance with the mailing requirement is otherwise found in the record. Service was invalid.

Williams v. MTA Bus Co., NY Slip Op 00692 (1st Dep't February 8, 2024)

Here is the decision.

Special trial preferences.

In this personal injury action, plaintiff was allegedly injured by a fall from an elevated platform while she was performing at the Metropolitan Opera House, a venue owned and operated by defendant Metropolitan Opera Association, Inc.

Plaintiff sought a special trial preference in the interest of justice, pursuant to CPLR 3403[a][3]. In the exercise of its discretion, the court denied special trial preference, noting that while plaintiff's income decreased post-accident, it remained reasonably adequate.

White v. Metropolitan Opera Assns., Inc., NY Slip Op 00467 (1st Dep't February 1, 2024)

Here is the decision.

Contribution claims.

Purely economic loss resulting from a breach of contract does not constitute 'injury to property'" within the meaning of the contribution statute, CPLR 1401.

Harriet Tubman Gardens Apt. Corp. v. H.T. Dev. Corp., NY Slip Op 00677 (1st Dep't February 8, 2024)

Here is the decision.

The business judgment rule and coop and condo boards.

The business judgment rule is applicable to the board of directors of cooperative and condominium corporations.  Pursuant to the rule, a court should defer to the board's determination so long as the board acts for the purposes of the cooperative of condominium, within the scope of its authority and in good faith. Unequal treatment of shareholders is sufficient to overcome the directors' insulation from liability under the rule, and a director who participates in the commission of a tort committed by the board may be held individually liable.

72 Poplar Townhouse, LLC v. Board of Mgrs. of the 72 Poplar St. Condominium, NY Slip Op 00606 (2d Dep't February 7, 2024)

Here is the decision.

Summary judgment in lieu of complaint.

Because the guaranty at issue reserves to defendant guarantor all defenses that were or may be available to the guaranteed party under a complex commercial contract, it does not qualify as the type of unconditional obligation that is appropriate for treatment under CPLR 3213.

Vitol Ams. Corp. v. Targa Resources Partners LP, NY Slip Op 00466 (1st Dep't February 1, 2024)

Here is the decision.

Failure to answer.

A defendant who has failed to timely answer a complaint and who seeks leave to file a late answer must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action.

Citimortgage, Inc. v. Sparozic, NY Slip Op 00403 (2d Dep't January 31, 2024)

Here is the decision.

Court holiday.

Statutes of limitations.

A cause of action for breach of fiduciary duty based on allegations of actual fraud is subject to a six-year limitations period, except where the fraud allegation is only incidental to the claim asserted.  According to the allegations in the complaint, the sponsor's principals' actions in concealing renovation charges in common charge assessments is not incidental to the cause of action pleaded, but rather underpins it, because plaintiff alleges that the sponsor's principals fraudulently used common charges to pay for the building renovation and concealed their actions by disguising the payments as relating to maintenance and repairs. Thus, the cause of action is subject to a six-year limitations period.

Board of Mgrs. of the 443 Greenwich St. Condominium v. SGN 443 Greenwich St. Owner LLC, NY Slip Op 00450 (1st Dep't February 1, 2024)

Here is the decision.

Bicycle accidents.

A person riding a bicycle on a roadway is entitled to all the rights and bears all the responsibilities of a driver of a motor vehicle. A bicyclist is required to use reasonable care for his own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid putting himself in a dangerous position. A motorist is required to keep a reasonably vigilant lookout for bicyclists, to sound the vehicle's horn when a reasonably prudent person would do so in order to warn a bicyclist of danger, and to operate the vehicle with reasonable care to avoid colliding with anyone on the road.

Amancio-Gonzalez v. Medina, NY Slip Op 00400 (2d Dep't January 31, 2024)

Here is the decision.

Appellate practice.

A trial court's ruling on a motion to vacate a note of issue is reviewed under an abuse of discretion standard.

Oldcastle Precast, Inc. v. Steiner Bldg. NYC, LLC, NY Slip Op 00459 (1st Dep't February 1, 2024)

Here is the decision.

Alter ego/veil piercing claims.

There is no independent cause of action for veil piercing.

245 E. 19 Realty LLC v. 245 E. 19th St. Parking LLC, NY Slip Op 00368 (1st Dep't January 30, 2024)

Here is the decision.

Summary judgment.

A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff, and that the defendant's negligence was a proximate cause of the alleged injuries.  A conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish the proponent's prima facie burden. 

Zeldin v. Larose, NY Slip Op 00336 (2d Dep't January 24, 2024)

Here is the decision.

Appelate practice.

An argument may properly be considered for the first time on appeal if it involves no new facts other than those that already appear on the record.

Vasquez v. Manhattan Coll., NY Slip Op 00365 (1st Dep't January 25, 2024)

Here is the decision.

Leave to renew.

A motion for leave to renew a prior motion must be based upon "new facts not offered on the prior motion that would change the prior determination," and "shall contain reasonable justification for the failure to present such facts on the prior motion," pursuant to CPLR § 2221[e].

Vasquez v. Manhattan Coll., NY Slip Op 00365 (1st Dep't January 25 2024)

Here is the decision.

Defaulting on a motion.

A party seeking to vacate a default in appearing on the return date of a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action or defense.

Deutsche Bank Natl. Trust Co. v. Moses, NY Slip Op 00294 (2d Dep't January 24, 2024)

Here is the decision.

Proof of proper service.

A process server's affidavit of service constitutes prima facie evidence that the defendant was validly served. However, when a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit of the process server, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing. Bare and unsubstantiated denials of service are insufficient to rebut the presumption of proper service created by a duly executed affidavit of service, and a hearing is not required where the defendant fails to swear to specific facts rebutting the statements in the process server's affidavit.

Deutsche Bank Natl. Trust Co. v. Moses, NY Slip Op 00294 (2d Dep't January 24, 2024)

Here is the decsion.

Summary judgment.

While an affidavit is generally considered competent and sufficient evidence on a motion for summary judgment, an affidavit that is conclusory and without specific factual basis does not establish the prima facie burden of a proponent of a motion for summary judgment.

Carboni v. Alfa Romeo USA, NY Slip Op 00351 (1st Dep't January 15, 2024)

Here is the decision.

Service of process.

Valid service pursuant to CPLR 308(2) may be made by delivery of the summons to a person of suitable age and discretion at a defendant's actual place of business. There is no requirement that delivery is to someone who is somehow authorized to accept service on the defendant's behalf.

Carpio v. Morris, NY Slip Op 00293 (2d Dep't January 14, 2024)

Here is the decision.