Property owners and primary assumption of the risk.

Practice point:  A property owner must act in a reasonable manner to prevent harm to those on its premises, and must control the conduct of persons on its premises when it has the opportunity to control their conduct, and is reasonably aware of the need to do so. The doctrine of primary assumption of risk applies when a consenting participant in a qualified activity is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks. A person who chooses to engage in such an activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the activity generally and flow from such participation. The duty owed in these situations is a duty to exercise care to make the conditions as safe as they appear to be. The doctrine generally has been restricted to particular athletic and recreational activities.

Case:  Nevo v. Knitting Factory Brooklyn, Inc., NY Slip Op 03136 (2d Dep't April 26, 2017)

Here is the decision. 

Tomorrow's issue:  A claim of discrimination on the basis of marital status.

Waiver of arbitration.

Defendants waived arbitration, as their participation in the lawsuit, in both state and federal court, for 11 months before moving to compel arbitration manifested an affirmative acceptance of the judicial forum and caused plaintiff unnecessary delay and expense.

Case:  JSBarkats PLLC v. Response Scientific Inc., NY Slip Op 03142 (1st Dep't April 25, 2017)

Here is the decision.

Tomorrow's issue:  Property owners and primary assumption of the risk.

Vacating a judgment by confession.

Practice point:  A defendant may challenge the judgment by confession only by trial in a plenary action, and not by motion.  The defendant has no standing tochallenge the affidavit of confession of judgment, as the affidavit protects the defendant's creditors, not the defendant, pursuant to CPLR 3218.

Case:  Cash & Carry Filing Serv., LLC v. Perveez, NY Slip 03047 (1st Dep't April 20, 2017)

Here is the decision.

Monday's issue:  Waiver of arbitration.

CPLR 306-b

Practice point:  CPLR 306-b requires that service of the summons and complaint or summons with notice be made within one hundred twenty days after the commencement of the action. CPLR 308(2) permits personal service on a natural person by delivering the summons within the state to a person of suitable age and discretion at the actual place of business of the person to be served and, within 20 days thereafter, mailing a copy of the summons to the actual place of business in an envelope marked "personal and confidential." Both the delivery and the mailing must be performed within 120 days of the filing of process, pursuant to CPLR 306-b.

Case:  Purzak v. Long Is. Hous. Servs., Inc., NY Slip Op 03027 (2d Dep't April 19, 2017)

Here is the decision. 

Tomorrow's issue:  Vacating a judgment by confession.

Opposing a summary judgment motion.

Practice point:  A plaintiff cannot defeat a summary judgment motion that makes out a prima facie case merely by asserting a new theory of liability for the first time in the opposing papers.

Case:  Biondi v. Behrman,  NY Slip Op 03039 (1st Dep't April 20, 2017)

Here is the decision. 

Tomorrow's issue:  CPLR 306-b.

The Labor Law and the interpretation of an Industrial Code regulation.

Practice point:  The interpretation of an Industrial Code regulation presents a question of law for the court. In interpreting a regulation, the Court must assume that the promulgating agency did not deliberately put in the regulation a phrase that was intended to serve no purpose, and each word must be read and given a distinct and consistent meaning.

Case:  Pruszko v. Pine Hollow Country Club, Inc., NY Slip Op 03025 (2d Dep't April 19, 2017)

Here is the decision. 

Tomorrow's issue:  Opposing a summary judgment motion.

Damages, irreperable harm, and injunctive relief.

Practice point:  If a plaintiff fails to allege damages of a noneconomic nature, there is no showing of irreparable harm, and injunctive relief is inappropriate.

Case:  Moltisanti v. East Riv. Hous. Corp., NY Slip Op 02919 (1st Dep't April 18, 2017)

Here is the decision.

Tomorrow's issue:  The Labor Law and the interpretation of an Industrial Code regulation.

Leave to file a late notice of claim

Practice point:  General Municipal Law § 50-e(7) provides that "[w]here the application is for leave to serve a late notice of claim, it shall be accompanied by a copy of the proposed notice of claim." Failure to comply with that provision is sufficient justification to deny the motion.

Case:  Bethune v. Nassau Univ. Med. Ctr. (NUMC), NY Slip Op 02770 (2d Dep't April 12, 2017)

Here is the decision.

Monday's issue:  Damages, irreparable harm, and injunctive relief.

Personal jurisdiction, nondomiciliaries, and agency.

Practice point:  To establish that a nondomiciliary defendant acted through an agent, a plaintiff must convince the court that the New York actors engaged in purposeful activities in the State in relation to the transaction at issue, for the benefit of and with the knowledge and consent of the defendant, and that the defendant exercised some control over the New York actors. To make a prima facie showing of control, a plaintiff's allegations must sufficiently detail the defendant's conduct so as to persuade a court that the defendant was a primary actor in the specific matter in question. Control cannot be shown based merely upon a defendant's title or position within the corporation, or upon conclusory allegations that the defendant controls the defendant corporation.

Case:  Coast to Coast Energy, Inc. v. Gasarch, NY Slip Op 02876 (1st Dep't April 13, 2017)

Here is the decision. 

Tomorrow's issue:  Leave to file a late notice of claim.

Personal jurisdiction over a nondomiciliary.

Practice point:  Pursuant to CPLR 302(a)(1) a New York court may exercise personal jurisdiction over a nondomiciliary if the nondomiciliary has purposefully transacted business within New York, and there is a substantial relationship between the transaction and the claim asserted. Purposeful activities are volitional acts by which the non-domiciliary avails itself of the privilege of conducting activities within the State, thus invoking the benefits and protections of its laws. More than limited contacts are required for purposeful activities sufficient to establish that the non-domiciliary transacted business in New York.

Case:  Coast to Coast Energy, Inc. v. Gasarch, NY Slip Op 02876 (1st Dep't April 13, 2017)

Here is the decision.

Tomorrow's issue:  Personal jurisdiction, nondomiciliaries, and agency.

An enforceable liquidated damages clause.

Practice point:  An enforceable liquidated damages clause is an estimate of the extent of the injury that would be sustained as a result of breach of the agreement, and embodies the principle of just compensation for loss.  Whether a clause is an enforceable liquidation of damages or an unenforceable penalty is a question of law, giving due consideration to the nature of the contract and the circumstances.

Case:  555 W. John St., LLC v. Westbury Jeep Chrysler Dodge, Inc., NY Slip Op 02769 (2d Dep't April 12, 2017)

Here is the decision.

Tomorrow's issue:  Personal jurisdiction over a nondomiciliary.