Monday, June 6, 2016

CPLR 1411 and assumption of the risk.

Practice point:  The Appellate Division affirmed the denial of a motion to dismiss the complaint in this action for breach of contract, conversion, and fraud. The plaintiff and the defendant are estranged spouses, and the plaintiff sued for damages after the defendant allegedly terminated a joint annuity contract. The plaintiff alleges that the defendant unilaterally exercised the cash value option of the contract, withdrawing all of the funds without his knowledge or consent and leaving him with tax liabilities.

The defendant moved for summary judgment contending that the plaintiff, by agreeing to enter into the joint annuity contract, necessarily assumed the risk of pecuniary injury. However, the doctrine of primary assumption of the risk is a defense to tort recovery involving certain types of athletic or recreational activities, and is inapplicable here.

Student note:  The defense of assumption of risk was abolished in 1975 with the adoption of CPLR 1411. The Court of Appeals has explained that a limited vestige of the doctrine -- called primary assumption of the risk -- survived the adoption of the statute.

Case:  Ballow v. Lincoln Fin. Corp., NY Slip Op 04009 (2d Dep't May 25, 2016)

Tomorrow's issue:  An injury at the gym.