Plaintiff was injured when he slipped from a diving board at defendant’s pool. In finding a question of fact had been raised about whether there existed a concealed or unreasonably increased risk on the surface of the diving board, the Fourth Department explained the applicable law: The doctrine of primary assumption of risk “generally constitutes […]
The Fourth Department reversed the trial court’s denial of a motion to amend a complaint, noting: “Leave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit… “. … A “court should not examine the merits or legal sufficiency […]
The Fourth Department affirmed the Court of Claims’ determination that a 21/2 inch drop off in the shoulder of a road was not the proximate cause of a driver’s losing control of her vehicle. The doctrine of “qualified immunity” in connection with road defects is explained. Marrow… v State…, CA 12-00974, 241, 4th Dept, 4-26-13 TRAFFIC […]
Plaintiff had signed a release of liability in connection with a one-hour skydiving course. Before the course could be given, the plane crashed and plaintiff was injured. In moving to dismiss the complaint, the defendants argued that General Obligations Law 5-326, which renders releases issued by “places of recreation” void, did not apply. The motion […]
In reversing the motion court and granting summary judgment to defendant car dealership, the Fourth Department (over a dissent) determined that defendant dealership was not the owner of the vehicle involved in the accident, and therefore could not be held vicariously liable under Vehicle and Traffic Law 388. Defendant’s employee (the daughter of the owner) […]
Plaintiff was standing on a barrel performing work for his employer. In reaching for a tool he grabbed onto some bricks on a column. The bricks came loose and plaintiff lost his balance and fell. Plaintiff sued the parties responsible for installing the bricks six years before (pursuant to a contract with the employer). In […]
The Court of Appeals (with a dissent) held that a question of fact about when an accident occurred had been raised by plaintiff’s verified pleadings. The defendant submitted evidence the accident occurred on February 5, making plaintiff’s action untimely. Plaintiff’s verified pleadings stated the accident occurred on February 10, making plaintiff’s action timely. In light […]
In finding that a 10-year warranty on windows and doors did not extend the relevant statute of limitations, the First Department wrote: Although initially it may seem somewhat unfair for defendant to have given plaintiffs a 10-year warranty and then argue that plaintiffs cannot sue for breach of warranty at any time during that 10-year […]
The First Department affirmed the grant of class certification in a landlord-tenant action finding that plaintiff’s rent overcharge claim and attorney’s-fees claim did not seek “penalties” in violation of CPLR 901. There was a dissent. The First Department wrote: Although plaintiff did not waive her right to reimbursement for alleged overcharges and interest, these claims […]
The First Department reversed the dismissal of a putative class action by tenants against a landlord alleging the landlord deregulated the apartments while receiving tax incentive benefits from the city. Because the tenants waived the statutory treble damages provision, the First Department determined that the case no longer involved “penalties” and was therefore not precluded […]
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