Summary judgment on the issue of liability.

 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. The plaintiff is not required to show the lack of comparative fault. However], the issue of a plaintiff's comparative negligence may be decided in the context of a plaintiff's motion for summary judgment on the issue of liability where, as here, the plaintiff also seeks dismissal of the defendant's affirmative defense alleging comparative negligence" (Ramirez v Wangdu, 195 AD3d 646, 646; see Sebagh v Capital Fitness, Inc., 202 AD3d 853; Poon v Nisanov, 162 AD3d at 808). A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR 3212[b]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324). On a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party (see Sage v Taylor, 195 AD3d 971; Gobin v Delgado, 142 AD3d 1134, 1135).

There can be more than one proximate cause of an accident (see Cox v Nunez, 23 AD3d 427), and the issue of comparative negligence is generally a question for the jury to decide (see Wiessner v Phillips, 201 AD3d 776, 777; Calderon v Cruzate, 175 AD3d 644, 648). However, "liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes" (Ely v Pierce, 302 AD2d 489, 489; see Federico v Defoe Corp., 138 AD3d 682, 684; Castillo v Amjack Leasing Corp., 84 AD3d 1298).

Here, the plaintiff established, prima facie, that she was not at fault in the happening of the subject accident (see 34 RCNY 4-08[f][1]; cf. Brito v RDJ Express Transp., 135 AD3d 651; Picke

Castillo v. Unique Roofing of N.Y., Inc., NY Slip Op 03675 (2d Dep't July 5, 2023)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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