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Plaintiff sued gym alleging that the gym’s trainer was negligent in how she worked with plaintiff resulting in injuries to plaintiff. The gym sought to have the case dismissed arguing that plaintiff had signed a waiver when he purchased the gym membership agreeing not to sue the gym. Plaintiff argued that New York law does not enforce waivers which would allow a place of amusement or recreation to avoid liability for its negligence. The court dismissed the case, finding that the law did not apply to establishments that provide instruction, and found the gym to be an instructional and not recreational establishment. In addition, the court found that because the waiver that plaintiff signed was explicit and comprehensible, there could be no confusion as to its application.

The buyer of a car with 126,000 miles sought to return the car as defective under New York State’s Lemon Law. The buyer argued that although the car had more than 100,000 miles on it such that it would normally be excluded from the Lemon Law, the fact that a new transmission was installed should exclude her car from that limitation. The court noted the buyer’s novel argument, but found that in addition to the buyer not having the car serviced three times, as required under the Lemon Law, the replacement of the transmission did not exclude the buyer from the 100,000 limitation. (12/04)

Landlord/defendant’s attempt to dismiss tenant/plaintiff’s complaint alleging injuries resulting from mold was denied notwithstanding that the landlord was unaware of actual mold in the premises where plaintiff lived. The court held that conditions which could normally lead to the growth of mold, even if no mold is visible, such as water leaks and other wet conditions, was enough to put the landlord on notice of a potential mold problem and for which, as the landlord, it should have taken steps to remedy so as to keep the premises in reasonably safe condition.

In a case of first impression, a group of domain name holders sued Register.com because it had automatically renewed the plaintiffs’ domain names. The First Department found that a domain name that is not trademarked is nothing more than a contract right and that Register.com’s action did not violate General Obligations Law §5-903 which renders unenforceable automatic renewal provisions in contracts pertaining to the maintenance of real or personal property. The court found also that Register.com’s conduct was not deceptive because it had complied with the agreement between the parties but that plaintiffs may not have received notice of certain allowable changes because plaintiffs’ e-mail addresses had not bee updated.

The parties sold self inflating Santa dolls and other holiday items. Plaintiff sued alleging that, among other things, defendant infringed a copyright plaintiff held on its Santa doll. Although each doll had features that set them apart, the “stereotypical features common to all Santa Clauses, which depict a jolly, rotund, elderly gentleman, wearing a traditional red suit . . .” were so common and therefore ineligible for copyright registration. The court held that “[w]here the similarity is because both items contain stereotypical features common to the subject matter” those items do not contain sufficient originality to invoke copyright protection and that infringement could therefore not be found.

Patron sued a restaurant after a glass of water exploded in his hand. Under the theories of liability asserted by plaintiff, before it could be found liable, the restaurant must have been found to be in the business of selling water or water glasses and that the restaurant had warranted that the water was fit for consumption. The Court found that, although the water was complimentary, it was not truly free. The water was offered as part of the meal purchased by the plaintiff, which was the business of the restaurant. Following, the Court determined that by serving the water, the restaurant implied that it was fit for consumption and that the container holding the water was fit for its purpose as well. For these reasons, the restaurant’s motion to dismiss was denied.

Stop & Shop Supermarket was found to have violated deceptive practice laws by selling expired food and toiletries. The court found that such practices could mislead a reasonable consumer as to the quality or grade of that product. The court held that allowing those items to remain on the store shelf was an affirmative representation that those items were of normal quality and suitable for use. The store’s argument that each product was date marked and therefore not misleading was rejected by the Court because a reasonable consumer could nonetheless be mislead.

Where a landlord’s rent demands were confusing and contradictory, and unable to be explained, the petition against the tenant was dismissed because it failed to appraise the tenant of the periods for which rent was demanded and the amount due.

The Cuban cigar company which owns the mark COHIBA, sued a U.S. based cigar manufacturer for for selling cigars carrying the name Cohiba. In its detailed decision in which the complexity of the issues were discussed, the court held that even though Cohiba cigars are unavailable in the U.S., the COHIBA mark is sufficiently known in the U.S. market and was known to be in use when the U.S. company began using the Cohiba name, such that allowing another company to sell cigars using the COHIBA mark would probably cause consumer confusion. The U.S. company was ordered to cease sales of the cigar and to turn over all packaging for destruction. (5/04)

Reversing two lower courts, the Appellate Division has recently decided that the Federal law banning unsolicited faxes is constitutional and does not restrict commercial speech because fax communication is only one method of speech and allows an advertiser all other “means of communication” while addressing a substantial governmental interest. The Appellate Court reinstated the cases the lower courts had dismissed and granted the plaintiffs in those case summary judgement as to the issue of liability for violating the fax ban law, remanding the cases for an assessment of damages, including the possibility of triple damages provided for under Federal law.