The doctrine of primary assumption of risk.

The doctrine applies only where the issue is the 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. Here, the infant plaintiff was injured while using a trampoline in the yard of the defendants' private residence, not in a designated athletic or recreational venue, and the defendants did not actively sponsor or promote the activity. As such, the doctrine is not a bar to liability.

Bell-Moran v. Pena, NY Slip Op 05147 (2d Dep't September 14, 2022)

Here is the decision.

Appellate practice.

The Appellate Division may consider an argument raised for the first time on appeal if the legal issue is determinative and the record on appeal is sufficient to permit review.

Rosa v. 47 E. 34th St. (NY), L.P., NY Slip Op 05144 (September 13, 2022)

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Suits against New York State.

Because suits against New York State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning the suit must be strictly construed. Pursuant to Court of Claims Act § 11(b), a plaintiff must plead (1) the nature of the claim; (2) the time when the claim arose; (3) the place where it arose; and (4) the damage or injuries alleged to have been sustained. The failure to satisfy any of these conditions is a jurisdictional defect which may not be cured by amendment.

Correa v. State of New York, NY Slip Op 05074 (2d Dep't August 31, 2022)

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Intrinsic fraud.

The defendant's contention that the plaintiff obtained the clerk's judgment by making false allegations in the complaint amounts to an allegation of intrinsic fraud. A defendant seeking to vacate a default based on intrinsic fraud, pursuant to CPLR 5015(a)(3), must establish a reasonable excuse for the default and a potentially meritorious defense to the action. Here, the defendant failed to establish a reasonable excuse for its default. Since the defendant failed to establish a reasonable excuse for the default, it is unnecessary to consider whether the defendant presented a potentially meritorious defense to the action.

Chase Bank USA, N.A. v. Laroche, NY Slip Op 05073 (2d Dep't August 31, 2022)

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Newly discovered evidence.

In order to succeed on a motion to vacate an order or judgment on the ground of newly discovered evidence, pursuant to CPLR 5015(a)(2), the movant must establish that the evidence could not have been discovered earlier through the exercise of due diligence and that the newly discovered evidence probably would have produced a different result.

Chase Bank USA, N.A. v. Laroche, NY Slip Op 05073 (2d Dep't August 31, 2022)

Here is the decision.

Appellate practice.

Thre is no appeal from a judgment entered upon the default of the appealing party, pursuant to CPLR 5511. However, an appeal from a judgment entered upon the default of the appealing party brings up for review those matters which were the subject of contest before the Supreme Court.  As a general rule, the Appellate Division will not consider issues raised on a subsequent appeal that were raised, or could have been raised, on an earlier appeal which was dismissed for lack of prosecution, although it has inherent jurisdiction to do so. 

275 Clermont, LLC v. Johnson, NY Slip Op 05070 (2d Dep't August 31, 2022)

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Contract interpretation.

The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent, and the best evidence the contracting parties' intent is what they say in their writing. The parties' words and phrases must, as in all cases involving contract interpretation, be given their plain meaning. Where a contract was negotiated between sophisticated, counseled business people negotiating at arm's length, courts should be especially reluctant to interpret an agreement as impliedly stating something which the parties specifically did not include. Where the contract's terms are clear and unambiguous, the parties' intent must be found within the contract's four corners, giving a practical interpretation to the language employed and reading the contract as a whole. Where a contract fails to specify the time for performance, the law will imply a reasonable time.

255 Butler Assoc., LLC v. 255 Butler, LLC, NY Slip Op 05068 (2d Dep't August 31, 2022)

Here is the decision.

Discovery sanctions.

Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading, where a party refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed. The resolution of discovery disputes and the nature and degree of the penalty to be imposed are matters within the sound discretion of the motion court. Absent an improvident exercise of discretion, the determination to impose sanctions for conduct that frustrates the purpose of the CPLR should not be disturbed.

Before imposing the drastic remedy of striking a pleading, there must be a clear showing that a party's failure to comply with discovery is willful and contumacious. Such conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time.

255 Butler Assoc., LLC v. 255 Butler, LLC, NY Slip Op 05067 (2d Dep't August 31, 2022)

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A Yellowstone injunction.

The injunction stays a landlord's termination of a leasehold while the propriety of the underlying default is litigated. The injunction does not nullify the remedies to which a landlord is otherwise entitled under the parties' contract. Instead, it maintains the status quo so that a commercial tenant, when confronted by a threat of termination of its lease, may protect its investment in the leasehold by obtaining a stay tolling the cure period so that upon an adverse determination on the merits the tenant may cure the default and avoid a forfeiture. In order t o obtain a Yellowstone injunction, the tenant must demonstrate that (1) it holds a commercial lease; (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease; (3) it requested injunctive relief prior to both the termination of the lease and the expiration of the cure period set forth in the lease and the landlord's notice to cure; and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises.

255 Butler Assoc., LLC v. 255 Butler, LLC, NY Slip Op 05066 (2d Dep't August 31, 2022)

Here is the decision.

Default judgments.

In order to be awarded a default judgment, pursuant to CPLR 3215(f), the plaintiff must submit proof of service of the summons and the complaint, proof of the defendant's default, and proof of the alleged facts constituting the claim. In order to vacate the judgment, the defendant must give a reasonable excuse for its default and demonstrate a potentially meritorious defense to the claim.

195-197 Hewes, LLC v. Citimortgage, Inc., NY Slip Op 05065 (2d Dep't August 31, 2022)

Here is the decision.

Appellate practice.

Prior to answering the complaint, the defendant moved pursuant to CPLR 3211(a)(1) to dismiss the complaint. However, the defendant failed to appear in court on the return date, and the motion was marked off the calendar. Thereafter, the defendant moved to vacate its default in appearing on the return date and to restore its motion to the calendar. The Supreme Court granted the defendant's motion, and the plaintiff appeals. The Appellate Division affirms, but notes that, contrary to the defendant's contention, the Supreme Court's denial of the defendant's motion to dismiss the complaint, in a subsequent order, does not render this appeal academic. 

195-197 Hewes, LLC v. Citimortgage, Inc., NY Slip Op 05064 (2d Dep't August 31, 2022)

Here is the decision.