Assumption of the risk.

Plaintiff alleges that he was injured when, as a passenger sightseeing on defendant's boat, he stood up as the boat was rising up and down as a result of passing waves, then slipped and fell. Defendant established entitlement to judgment as a matter of law based on the doctrine of primary assumption of the risk., as his evidence shows that plaintiff's injuries arose from commonly appreciated risks inherent in the recreational activity in which he was engaged. 

Plaintiff' argues that, even if the primary assumption of the risk doctrine applies, he could not be deemed to have assumed certain increased risks beyond those inherent in the activity, noting the risks created by defendant's alleged reckless conduct in operating the boat, the presence of alcohol on board, the absence of life jackets, and his inexperience with boats. The Appellate Division rejected the argument as conclusory and otherwise unsupported by expert opinion or the circumstances of the incident.

Dismissed.

Paulino v. Braun, NY Slip Op 03668 (1st Dep't June 19, 2021)

Here is the decision.

A motion for civil contempt.

In order to prevail on the motion, the movant must prove, by clear and convincing evidence, that (1) there was a lawful court order, clearly expressing an unequivocal mandate; (2) the offending party disobeyed the order; (3) the offending party had knowledge of its terms; and (4) the movant was prejudiced by the offending conduct. When the movant establishes a knowing failure to comply with a clear and unequivocal court mandate, the burden shifts to the offending party to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order. The motion is addressed to the sound discretion of the court.

Matter of Weiss v. Rosenthal, NY Slip Op 03595 (2d Dep't June 9, 2021)

Here is the decision.

Stipulations of settlement.

Stipulations of settlement are favored by the courts and they are not lightly set aside, especially where the parties are represented by counsel. The stipulation is a contract which is enforceable according to its terms. As with any contract, its construction should give fair meaning to all of the language used by the parties, in order to reach a practical interpretation of the parties' expressions, so that their reasonable expectations will be realized.

Matter of Varone Irrevocable Trust, NY Slip Op 03596 (2d Dep't June 9, 2021)

Here is the decision.

Appellate practice.

Plaintiff's cross motion was properly denominated a motion to renew based on newly discovered evidence and was thus appealable as of right, pursuant to CPLR 2221[e].

Salvator v. 55 Residents Corp., NY Slip Op 03673 (1st Dep't June 10, 2021)

Here is the decision.

A ceiling collapse.

The landlord failed to establish its entitlement to judgment as a matter of law in this action where plaintiff' seeks to recover damages for a ceiling collapse. The landlord failed to submit sufficient evidence showing that it neither created nor had actual or constructive notice of the hazardous condition. Plaintiff testified that she specifically notified the management company that her ceiling was "falling apart," and that she had a discussion in her bedroom with the super and a carpenter from the contractor doing renovation work on behalf of the landlord in the apartment above, during which she pointed out that dust was coming from her bedroom ceiling, and was told that the ceiling needed repairs Additionally, the building super and carpenter each testified that they observed multiple foot-long cracks in plaintiff's ceiling. The landlord submitted no evidence establishing that the area where they saw the cracks was distinguishable from the area which ultimately collapsed onto plaintiff.

For her part, plaintiff submitted sufficient evidence in opposition to raise a triable issue of fact, including an email in which she notified the building management that her ceiling was falling apart, and subsequent emails in which the renovation contractor informed management that cracks had formed in the ceiling.

The landlord failed to establish that, on these facts, the doctrine of res ipsa loquitur does not apply. A ceiling collapse does not ordinarily occur in the absence of negligence, and the landlord has not established that plaintiff's own negligence caused this accident. The fact that both the landlord and the contractor may have controlled plaintiff's ceiling does not preclude application of the doctrine. 

Wenzel v. All City Remodeling, Inc., NY Slip Op 03674 (1st Dep't June 10, 2021)

Here is the decision.

Repudiating a contract.

When one party repudiates a contract, the other party is entitled to claim damages for a total breach by the repudiating party, and any future performance by the nonbreaching party is excused.

Alloy Advisory, LLC v. 503 W. 33rd St. Assoc., Inc., NY Slip Op 03529 (1st Dep't June 3, 2021)

Here is the decision.

CPLR 3019(b).

In New York, cross claims may be asserted between defendants for any cause of action at all, regardless of whether they are related to the plaintiff's claim.

Feiger v. Ray Enters., LLC, NY Slip Op 03525 (1st Dep't June 3, 2021)

Here is the decision.

Notices to admit.

A notice to admit is to be used only for disposing of uncontroverted questions of fact or those that are easily provable, not for requesting admissions of material issues or ultimate or conclusory facts which can only be resolved after a full trial. The notice cannot be used to obtain information in lieu of other disclosure devices, such as the taking of depositions. Here, the motion court correctly found that both notices, which sought admissions of both ultimate and conclusory facts, were sufficiently responded to, and properly directed plaintiff to seek such information through discovery disclosure devices.

Genna v. Klempner, NY Slip Op 03526 (1st Dep't June 3, 2021)

Here is the decision.

Appellate practice.

At issue is an Order which precludes defendants American University of Antigua and American Union of Antigua from participating in the damages trial, and, sub silentio, denied their motion in limine to enforce a prior evidentiary preclusion order against plaintiffs and their motion to preclude certain damages. The Order is appealable, because it decided a motion made on notice to enforce the preclusion order, and denied defendants' right to participate in the damages trial, thereby involving the merits of the controversy and affecting a substantial right, pursuant to CPLR 5701 [a] [2] [iv], [v].

Jeffers v. American Univ. of Antigua, NY Slip Op 03528 (1st Dep't June 3, 2021)

Here is the decision.

Noncompete agreements and the practice of law.

At issue  is a law firm's employment agreement that prohibits a former associate attorney from engaging in any business that conducts the same or similar business as plaintiff for a period of 36 months, within 90 miles of New York City or in the Israeli community. The agreement also purports to prohibit the defendant attorney from directly or indirectly soliciting any business from customers or clients of plaintiff for a period of 36 months within 90 miles of New York City or in the Israeli community; or advertise on Israeli/Hebrew websites, TV or newspaper ads.

Rule 5.6(a)(1) of the Rules of Professional Conduct, codified as 22 NYCRR 1200.0, bars lawyers from "participat[ing] in offering or making a partnership, shareholder, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship." To the extent the noncompete provision seeks to prevent the defendant attorney from "conducting business activities that are the same or similar to those of [plaintiff]" within 90 miles of New York City or in the Israeli community, it is void and unenforceable. The solicitation of the firm's clients, however, is actionable.

Feiner & Lavy, P.C. v. Zohar, NY Slip Op 03407 (1st Dep't June 1, 2021)

Here is the decision.

City agencies as defendants.

The Appellate Division affirmed the Order which granted defendant's motion to dismiss the complaint and denied plaintiff's cross motion to amend the complaint to add the City of New York. Defendant, the New York City Human Resources Administration (HRA), is a City agency and, thus, is not a proper party to this action, pursuant to NY City Charter § 396. Plaintiff's motion to substitute the City for HRA was properly denied, as it was already decided against him in a prior order in this action. In any event, the complaint fails to state a claim against HRA, as the allegations do not implicate the agency.

Komatsu v. New York City Human Resources Admin., NY Slip Op 03410 (1st Dep't June 1, 2021)

Here is the decision.