The doctrine of primary assumption of risk.

A participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from participating in the sport. Inherent risks are those which are known, apparent, natural, or reasonably foreseeable consequences of participation. The doctrine encompasses risks involving conditions that are less than optimal. Here, the plaintiff assumed the risk of injury from stepping into a hole by voluntarily choosing to play basketball on an outdoor basketball court surface with faulty conditions which were open and obvious.

Balgley v. City of New York, NY Slip Op 03672 (2d Dep't July 5, 2023)

Here is the decision.

Overlooking an error in a party's moving papers.

In this negligence action stemming from an auto-bicycle collision, the defendants failed to submit a copy of the defendant-driver's deposition transcript in support of their motion to dismiss. However,  the moving papers included the attorney's affirmation stating that the defendants were submitting the transcript as an exhibit. In addition, the defendants cited to the deposition testimony, and based their arguments on the transcript. The defendants submitted a copy of the transcript with their reply papers in further support of the motion, and their attorney affirmed that the failure to submit the transcript with the original papers was a clerical error. Since the plaintiffs did not assert that they were prejudiced by the omission, and the defendants ultimately submitted the transcript, the court should have ignored the defendants' failure to submit the transcript in the original papers, pursuant to CPLR 2001.

A.B. v. Waring, NY Slip Op 03671 (2d Dep't July 5, 2023)

Here is the decision.

Failure to answer.

By failing to answer, a defaulting defendant is deemed to have admitted the factual allegations in the complaint. 

State Farm Fire & Cas. Co. v. AA Acupuncture Serv., P.C., NY Slip Op 03562 (1st Dep't June 29, 2023)

Here is the decision.

Res judicata.

Under the doctrine of res judicata, or claim preclusion, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding. Here, a foreclosure action was dismissed for lack of standing, and a subsequent action was dismissed on the ground that the plaintiff was bound by the earlier dismissal order. Because neither action reached the merits of the foreclosure claim, this action is not barred.

Bank of N.Y. Mellon v. Treitel, NY Slip Op 03446 (2d Dep't June 18 2023)

Here is the decision.

Summary judgment on a negligence claim.

Because there can be more than one proximate cause of an accident, a defendant moving for summary judgment in a negligence action must establish, prima facie, that he is free from fault.

Greene v. Peets, NY Slip Op 03454 (2d Dep't June 28 2023)

Here is the decision.

Appellate practice.

There is no appeal as of right from an order that does not decide a motion on notice, pursuant to CPLR 5701 [a] [2]. However, in the interest of judicial economy, the Appellate Division may exercise its discretion and deem the notice of appeal to be a motion for leave to appeal, and grant that motion, pursuant to CPLR 5701[c].

Trafalet v. Trafalet, NY Slip Op 03563 (1st Dep't June 29, 2023)

Here is the decision.

Expedited relief.

Plaintiff commenced this action by summary judgment in lieu of complaint for unpaid rent of a retail store that was personally guaranteed by defendant. In opposition, defendant raised an issue of fact as to the amount of rent due and owing by submitting the affidavit of the store's manager, who averred that the only outstanding rent owed was the rent due for the period when the store was forced to close as a result of the Covid-19 pandemic. Plaintiff is not entitled to the expedited relief afforded by CPLR 3213.

3350 BW 136 Inc. v. Perez, NY Slip Op 03538 (1st Dep't June 29, 2023)

Here is the decision.

Default judgments.

Pursuant to CPLR 3215(f), an applicant for a default judgment against must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendant's failure to answer or appear. In order to demonstrate the facts constituting the claim, the movant need only submit sufficient proof to enable a court to determine that there is a viable cause of action. 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. Whether a proffered excuse is reasonable is a sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits. The determination of what constitutes a reasonable excuse lies within the discretion of the motion court. Where the defendant fails to demonstrate a reasonable excuse for its default, the court need not consider whether the defendant possesses a potentially meritorious defense to the action. Defaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them.

Cartessa Aesthetics, LLC v. Demko, NY Slip Op 03328 (2d Dep't June 21, 2023)

Here is the decision.

Continuous treatment doctrine.

Routine physical examinations or visits concerning matters unrelated to the condition giving rise to the malpractice claim do not implicate the doctrine so as to toll the statutory limitations period.

Pinkney v. New York City Health & Hosps. Corp., NY Slip Op 03421 (1st Dep't June 22, 2023)

Here is the decision.

Federal preemption of state laws.

Where a cause of action is preempted by federal law, a party may move pursuant to CPLR 3211(a)(2) to dismiss the cause of action on the ground that the court lacks subject matter jurisdiction. Preemption can occur in any one of three ways: where Congress has expressly preempted state law; where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law; and where federal law conflicts with state law.

Astro Ready Mix, LLC v. MTA Long Is. R.R., NY Slip Op 03324 (2d Dep't June 21, 2023)

Here is the decision.

Appellate practice.

As a general rule, the Appellate Division does not consider any issue raised on a subsequent appeal that could have been raised on an earlier appeal that was dismissed for lack of prosecution, although it has the inherent jurisdiction to do so,

Alisa Auto Serv., Inc. v. Chernetskyy, NY Slip Op 03323 (2d Dep't June 21, 2023)

Here is the decision.