Christmas Eve 1964

Expert medical testimony

A medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field, but the witness should have the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable. Questions regarding the precise nature and degree of the expert's experience go to the weight that the opinions should be given, which is a matter for resolution by a jury.

Diamond v. St. Anthony Community Hosp., NY Slip Op 06987 (2d Dep't December 17, 2025)

Here is the decision.

Leave to renew

The motion for leave to renew was untimely since it was made after the time to appeal from the order and judgment of foreclosure and sale had expired.

Deutsche Bank Trust Co. Ams. v. Maron, NY Slip Op 06986 (2d Dep't December 17, 2025)

Here is the decision.

Extending time

Supreme Court improvidently exercised its discretion in denying plaintiff's motion to extend time for filing the note of issue. Plaintiff had good cause for an extension of time, demonstrating a reasonable excuse for the delay in providing disclosure, the inability to access bank records that had been locked because of an unrelated fraud, and good-faith efforts to resolve discovery disputes before proceeding to trial. The delays giving rise to the requested extension did not arise from willfulness in missing deadlines, but from legitimate difficulties encountered by both sides during discovery. Defendants did not oppose plaintiff's motion and they do not oppose plaintiff's appeal, and they had expressed their own need for an extension of time to obtain further discovery. The denial of plaintiff's motion left the parties in limbo where they could neither move forward to trial nor complete the discovery necessary to move forward to trial, thereby frustrating the strong public policy favoring open disclosure to allow the parties to prepare for trial. Motion granted.

SF Consultants, LLC v. 28 W. Group Corp., NY Slip Op 07122 (1st Dep't December 18, 2025)

Here is the decision.

Estates, powers, and trusts law

There can be no relief as against an estate absent the appointment of an executor or public administrator. The estate itself is a legal fiction which can only be sued through its personal representative, pursuant to EPTL 11-3.1.

Matter of 200 Claremont Ave. Hous. Dev. Fund Corp. v. Estate of Elsie Lewis, NY Slip Op 07084 (1st Dep't December 18, 2025)

Here is the decision.

Setting aside a jury verdict

A jury verdict should be set aside as contrary to the weight of the evidence if the jury could not have reached the verdict based on any fair interpretation of the evidence.  A jury verdict that is irreconcilably inconsistent must be set aside.

Contona v. Godas, NY Slip Op 06982 (2d Dep't December 17, 2025)

Here is the decision.

Service of process.

CPLR 306-b permits a court to dismiss a proceeding without prejudice or extend the time for service for good cause shown or in the interest of justice. Good cause and interest of justice are two separate and independent statutory standards. To establish good cause, a petitioner must demonstrate reasonable diligence in attempting service. The more flexible interest of justice standard accommodates late service that might be due to mistake, confusion, or oversight, so long as there is no prejudice to the respondent. In deciding whether to extend time in the interest of justice, the court may consider diligence, or lack thereof, along with other factors including the expiration of the statute of limitations, the meritorious nature of the proceeding, the length of delay in service, the promptness of the petitioner's seeking an extension, and prejudice to the respondent. The determination of whether to grant the extension in the interest of justice is within the discretion of the motion court.

Matter of Davis v. ACS-Kings, NY Slip Op 06860 (2d Dep't December 10, 2025)

Here is the decision.

Motion practice.

The motion court providently exercised its discretion in overlooking the failure to include a copy of the pleadings in plaintiff's initial summary judgment papers, because plaintiff attached a copy in its reply papers and there is no showing of prejudice. Plaintiff did not have to establish that it had standing as a predicate to summary judgment, since defendant waived that defense by not raising it in his answer or in a pre-answer motion to dismiss. It is of no moment that plaintiff may not have properly authenticated the two letters submitted in support of the motion, as defendant, in his answer, admitted that he had received a written demand for payment.

CLNC 2019-FL1Funding, LLC v. Bennett, NY Slip Op 06893 (1st Dep't December 11, 2025)

Here is the decision.

Administrative law.

Judicial review of an administrative determination is limited to whether it was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion. An agency's determination is arbitrary and capricious when it is without a sound basis in reason or the facts. If the court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency. Moreover, an agency's interpretation of the statutes and regulations that it administers is entitled to deference, and must be upheld if reasonable. 

Matter of East Riv. Group, LLC v. New York State Div. of Hous. & Community Renewal, NY Slip Op 06861 (2d Dep't December 10, 2025)

Here is the decision.

Contract law.

A written agreement that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms.

Stevens v. Audthan, LLC, NY Slip Op 06922 (1st Dep't December 11, 2025)

Here is the decision.

Late notices of claim

In determining whether to grant leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc under General Municipal Law § 50-e(5), the court, in its discretion, must consider all relevant facts and circumstances, including, but not limited to, whether: (1) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim; (2) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter; and (3) the delay would substantially prejudice the public corporation in its defense. While no single factor is determinative, whether the public corporation had actual knowledge of the essential facts constituting the claim is a factor of great importance, and the party seeking leave has the burden of establishing this factor through the submission of non-speculative evidence.

Matter of Giustra v. New York City Health & Hosps. Corp., NY Slip Op 06862 (2d Dep't December 10, 2025)

Here is the decision.

Vacating a default

Defendant timely filed its motion to vacate the default order under CPLR 317 because no entry of judgment was filed. Nevertheless, in this trip and fall action alleging a defect in a public sidewalk, defendant failed to demonstrate a meritorious defense as required by CPLR 317. The affidavit from defendant's property manager contains only general denials of its duty and notice. Vacatur denied.

Arias v. City of New York, NY Slip Op 06891(1st Dep't December 11, 2025)

Here is the decision.

Motion to vacate

Supreme Court properly denied respondent's motion to vacate the June 2018 judgment. Respondent does not explain how the allegedly new information would have changed the outcome in this proceeding, which is solely to enforce the prior judgment, pursuant to CPLR 5015[a][2]. In addition, the record establishes that respondent learned of the supposedly new information in May of 2021, over three years before respondent filed his motion to vacate on September 25, 2024.

Matter of IGS Realty Co., L.P. v. Brady, NY Slip Op 06786 (1st Dep't December 4, 2025)

Here is the decision.

Constructive trusts.

The four factors to be considered in ascertaining whether the imposition of a constructive trust is warranted are the existence of a fiduciary or confidential relationship, a promise, a transfer in reliance thereon, and unjust enrichment.

Corriette v. Mele, NY Slip Op 06687 (2d Dep't December 3, 2025)

Here is the decision.

Expert witnesses

 Supreme Court providently exercised its discretion in denying defendants' motion to strike plaintiffs' expert disclosure and to preclude the expert from testifying at trial, pursuant to CPLR 3101[d][1], and finding that plaintiffs' expert disclosure filing was not untimely. The record does not show that the delay in plaintiffs' expert disclosure was due to willful noncompliance or that defendants were prejudiced by the belated disclosure, particularly given that defendants were on notice that plaintiffs intended to engage an economist such as a CPA as an expert witness. Further, Supreme Court's adjournment of the matter to provide defendants time to engage a rebuttal expert if they deemed one necessary was appropriate to prevent any prejudice.

United Medicine & Rehabilitation, P.C. v. Yakobashvili, NY Slip Op 06797 (1st Dep't December 4, 2025)

Here is the decision.

Gross negligence

In order to constitute gross negligence, a party's conduct must smack of intentional wrongdoing or evince a reckless indifference to the rights of others. A party is grossly negligent when it fails to exercise even slight care or diligence. Ordinarily, the question of gross negligence is to be determined by the trier of fact.

Calixto v. A. Balsamo & Rosenblatt, P.C., NY Slip Op 06686 (2d Dep't December 3, 2025)

Here is the decision.

December 8, 1941

December 7, 1941

Attorneys' fees

Determining whether a party has prevailed for the purpose of recovering its attorneys' fees requires an initial consideration of the true scope of the dispute litigated, followed by a comparison of what was achieved within that scope.

Matter of Aryeh Realty Corp. v. 18 E. 69th St Tenant, LLC, NY Slip Op 06783 (1st Dep't December 4, 2025)

Here is the decision.

Pleading fraud.

The elements of a cause of action to recover damages for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff, and damages.  A claim rooted in fraud must be pleaded with the requisite particularity under CPLR 3016(b).

ANS 1 Corp. v. Yosef, NY Slip Op 06684 (2d Dep't December 3, 2025)

Here is the decision.

Discovery

The nature and degree of a penalty imposed pursuant to CPLR 3126 for failure to comply with discovery is within the trial court's discretion. Although public policy strongly favors that actions be resolved on the merits, a court may resort to the drastic remedies of striking a pleading or precluding evidence upon a clear showing that a party's failure to comply with a disclosure order was the result of willful and contumacious conduct. The willful and contumacious character of a party's conduct can be inferred from either the repeated failure to respond to demands or comply with discovery orders without demonstrating a reasonable excuse for these failures, or the failure to comply with court-ordered discovery over an extended period of time.

Barua v. IM Peculiar, Inc., NY Slip Op 06591 (2d Dep't November 26, 2025)

Here is the decision.

Contract law

Where there is an inconsistency between a general provision and a specific provision of a contract, the specific provision controls.

Moghtaderi v. Apis Capital Advisors, LLC, NY Slip Op 06548 (1st Dep't November 25, 2025)

Here is the decision.

Res judicata

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, even if based on a different theory or if seeking a different remedy. A party may not remain silent in the first action and then bring a second one on the basis of a preexisting claim for relief that would impair the rights or interests established in the first action.

Bartley v. Morgan, NY Slip Op 06590 (2d Dep't November 26, 2025)

Here is the decision.

Extending time

Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant an extension of time within which to effect service for good cause shown or in the interest of justice. The more flexible interest of justice standard accommodates late service that might be due to mistake, confusion, or oversight, as long as there is no prejudice to the defendant. In considering the interest of justice standard, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to the defendant.

Bank of N.Y. v. Hernandez, NY Slip Op 06589 (2d Dep't November 26, 2025)

Here is the decision.