Punitive damages

Punitive damages are permitted when the defendant's wrongdoing is not simply intentional but evinces a high degree of moral turpitude and demonstrates such wanton dishonesty as to imply a criminal indifference to civil obligations. The misconduct must be exceptional, as when the wrongdoer has acted maliciously, wantonly, or with a recklessness that betokens an improper motive or vindictiveness, or has engaged in outrageous or oppressive intentional misconduct or with reckless or wanton disregard of safety or rights. Here, the plaintiff's conclusory allegations that the defendants' conduct was wanton, reckless, and affected the public were insufficient to sustain the demand for punitive damages.

CK Real Estate, LLC v. 2018 Li Lin Realty, LLC, NY Slip Op 04173 (2d Dep't July 1, 2026)

Here is the decision.

Appellate practice

It is the appellant's obligation to assemble a proper record on appeal. The record must contain all of the relevant papers before the Supreme Court. Appeals that are not based upon complete and proper records must be dismissed.

Banks v. City of New York, NY Slip Op 04170 (2d Dep't July 1, 2026)

Here is the decision.

Piercing the corporate veil.

Supreme Court properly dismissed the fourth counterclaim, which purports to interpose a cause of action to pierce the corporate veil. The counterclaim, which alleges facts to support an alter ego recovery against plaintiff's principal, fails because veil-piercing is not a stand-alone cause of action.

Avail Holding, LLC v. ICM Funding, LLC, NY Slip Op 04256 (1st Dep't July 2, 2026)

Here is the decision.

Appellate practice

An appellate court's resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court. 

Alpha Phi Alpha Senior Citizens Ctr., Inc. v. Zeta Zeta Lambda Co., Inc., NY Slip 04166 (2d Dep't July 2, 2026)

Here is the decision.

Admissibility of evidence

The unaffirmed medical records annexed to plaintiff's pain management specialist's affirmation are inadmissible and cannot not be bootstrapped into evidence through an affirmed report.

Amezquita v. Peguero, NY Slip Op 04137 (1st Dep't June 30, 2026)

Here is the decision.

Court holiday

Service of process

A court lacks personal jurisdiction over a defendant who is not properly served with process. Service upon a natural person must be made in strict compliance with CPLR 308. A process server's affidavit constitutes prima facie evidence of proper service. A mere conclusory denial of service is insufficient to rebut the presumption of proper service arising from the affidavit. To warrant a hearing to determine the validity of service of process, the denial of service must be substantiated by specific, detailed facts that contradict the affidavit.

Here, the process server's affidavit constituted prima facie evidence that the defendant was properly served pursuant to CPLR 308(2). The defendant failed to rebut the presumption of proper service. The defendant's sworn statement submitted in support of his motion contained only conclusory averments that he was not served with process on the date of service and that he lives alone, and was not otherwise substantiated by specific facts. The additional sworn submissions improperly offered by the defendant for the first time in reply may not be considered.

Accesslex Inst. v. Lee, NY Slip Op 04165 (2d Dep't July 1, 2026)

Here is the decision.

Vacating a default

A party seeking to vacate an order entered upon a default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion. A motion to vacate a default is addressed to the sound discretion of the court.

Guercia v. Gao, NY Slip Op 03950 (2d Dep't June 24, 2026)

Here is the decision.

Sanctions

The trial court improvidently exercised its discretion in denying plaintiff an award of sanctions despite noting that defendant knowingly asserted a meritless position for the purpose of delaying and prolonging the litigation. The record established that defendant prolonged the litigation based on largely meritless claims to avoid payment of the Notes and that its founder and Chief Executive Officer made false statements of material fact, rendering the conduct frivolous.

Defendant provided no support in the record for the CEO's statements in his affidavit that: (1) plaintiff represented that the Notes would be consolidated; (2) the repayment date would be extended to December 31, 2024; (3) defendant's Chief Financial Officer acted as an agent for plaintiff in breach of his fiduciary duty to defendant; and (4) the CFO presented unauthorized financial projections to plaintiff. These claims were denied by the Chief Administration Officer of plaintiff's general partner and the CFO, and documents in the record demonstrate that they are false. Moreover, defendant's CEO's June 19, 2024 email demonstrated that he intended to prolong the litigation by asserting baseless claims to delay payment of the Notes.

While sanctions should not be imposed so as to restrict ultimately unpersuasive, good-faith arguments requiring a review of the law, there is no good faith here. Presenting knowingly false affidavits to a court is a proper basis for the imposition of sanctions.

Remanded for a determination of appropriate sanctions to be imposed upon defendant, pursuant to 22 NYCRR 130-1.1[a].

Mendon Ventures Fintech Fund, LP v. Equitus Corp., NY Slip Op 04040 (1st Dep't June 25, 2026)

Here is the decision.

Contract law

The complaint sufficiently states a claim for breach of contract, as it identifies the agreement, and alleges plaintiff's performance, defendants' breach of numerous provisions, and resulting damages. Although the pleaded damages were imprecise, it is not fatal at this pre-answer, pre-discovery stage of the litigation.The action was not premature, as defendants did not prove that there was no notice or that the agreement's notice and mediation provisions were express conditions precedent. The provision that either party "may" demand mediation suggests permissiveness. As to the argument that plaintiff failed to invoke the agreement's audit procedures, defendants' alleged withholding of accountings frustrated the process. 

Greer v. FAM Networks, LLC, NY Slip Op 04039 (1st Dep't June 25, 2026)

Here is the decision.

Appellate practice

Defendant's argument that the second amended bill of particulars is a nullity is unpreserved since it is raised for the first time on appeal. However, because it is a legal issue appearing on the face of the record which could not have been avoided if it had been timely raised, it is reviewable on appeal.

Di Giulio v. New York City Tr. Auth., NY Slip Op 04037 (1st Dep't June 25, 2026)

Here is the decision.

Landlord-tenant law

There is no constructive eviction claim absent an allegation that the landlord's wrongful conduct deprived the tenant of the use of the premises.

Amsterdam 140, LLC v. Fruitopia, LLC, NY Slip Op 04035 (1st Dep't June 25, 2026)

Here is the decision.

Medical malpractice

Defendant met its prima facie burden of demonstrating that the action was barred by the statute of limitations by showing that plaintiff sought no further treatment for his arm injury after he returned for a post-operative evaluation on March 15, 2021, and that he commenced the action on September 25, 2023, more than two years and six months after that date. Once defendant met its prima facie burden, it was plaintiff's burden to demonstrate triable issues of fact with respect to application of the continuous treatment doctrine. Plaintiff failed to meet his burden. Preliminarily, the record contains no indication that plaintiff submitted papers in opposition to defendant's motion. In any event, the record includes no evidence suggesting that plaintiff sought or obtained any additional treatment for his condition after March 15, 2021. Although the medical chart from the appointment contains a note stating that plaintiff was to come back for a follow-up visit in six weeks, the record contains no evidence indicating that plaintiff ever scheduled or attended such an appointment.

Backer v. Parsons, NY Slip Op 03917 (1st Dep't June 23, 2026)

Here is the decision.

Releases

A valid release constitutes a complete bar to an action on a claim which is the subject of the release. A clear and unambiguous release will be fully enforced, and the court may not look to extrinsic evidence to determine the parties' intent. Although a defendant has the initial burden of establishing that it has been released from any claims, a signed release shifts the burden of going forward to the plaintiff to show that there has been fraud, duress or some other fact which is sufficient to void the release.

Aretakis v. Sheehan, NY Slip Op 03773 (2d Dep't June 17, 2026)

Here is the decision.

Default judgments

Defendant failed to establish that the judgment, which was entered after defendant's default, was secured by extrinsic fraud. Regardless of the validity of his allegation that plaintiff concealed from him the scheduling of two court conferences, that information was available to defendant through e-courts, to which defendant previously admitted having access. Nor does defendant's contention that plaintiff engaged in intrinsic fraud by misrepresenting the scope of its work in the underlying action compel vacatur of the judgment because defendant failed to provide a reasonable excuse for his default and has not demonstrated a meritorious defense since the record reflects that, contrary to his contentions, plaintiff did not misrepresent the work it performed on his behalf in the underlying action.

Dunnington Bartholow & Miller, LLP v. Simon,, NY Slip Op 03878 (1st Dep't June 18, 2026)

Here is the decision.

Premises liability

A defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of it. This burden may be established by presenting evidence that there was a storm in progress when the injured plaintiff allegedly slipped and fell.

Under the storm in progress doctrine, a landowner will not be held liable in negligence for a plaintiff's injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter. A lull in the storm does not impose a duty to remove the accumulation of snow or ice before the storm ceases in its entirety. However, even if a storm is ongoing, once a property owner elects to remove snow or ice, it must do so with reasonable care or it could be held liable for creating a hazardous condition or exacerbating a natural hazard created by the storm. The failure to remove all the snow and ice, without more, does not establish that the defendant increased the risk of harm.

Archie v. Cunningham Assoc., L.P., NY Slip Op 03772 (2d Dep't June 17, 2026)

Here is the decision.

Derivative claims

The derivative claims that were asserted against the individual defendants on behalf of the condominium's unit owners are dismissed. It is undisputed that plaintiff has standing to pursue the direct claims in this matter based on a proper assignment of all litigation claims against defendants by his wife, the unit owner. However, neither the assignment, nor any other instrument, transferred to him the membership interest in the condominium that is required for the assertion of derivative claims on behalf of the unit owners.

Bent v. Cirone, NY Slip Op 03875 (1st Dep't June 18, 2026)

Here is the decision.

Quasi-estoppel

Quasi-estoppel is estoppel against inconsistent positions, and, like equitable estoppel, it is imposed by law in the interest of fairness to prevent fraud or injustice. In function, however, equitable estoppel seeks to protect the parties' reasonable expectations, whereas quasi-estoppel seeks to protect the integrity of litigation. Quasi-estoppel must be based on the previous assertion of a position so inconsistent with the one now taken as to make the present claim unconscionable.

Abdelhamed v. XYZ Limousine, Inc., NY Slip Op 03770 (2d Dep't June 17, 2026)

Here is the decision.

Contract law

The effective date of a lease is the date the tenancy commences, not the date on which the lease was executed.

Laspina v. 340 E. 198th St., LLC, NY Slip Op 03757 (1st Dep't June 16, 2026)

Here is the decision.

Summary judgment motions

As defendant failed to demonstrate, prima facie, its entitlement to summary judgment, the burden never shifted to plaintiff to raise an issue of fact.

Danisi v. Diker A & V Contr. Corp., NY Slip Op 03755 (1st Dep't June 16, 2026)

Here is the decision.

Vacatur

Pllaintiff established a reasonable excuse for the default through counsel's detailed and credible explanation as to why the office was unaware of the scheduled court appearance. This was sufficient to show that any law office failure was inadvertent, pursuant to CPLR 5015[a][1]. Although counsel improperly commenced a second action asserting the amended claims, rather than moving immediately to vacate the default in this action, there is no evidence of dilatory behavior or an intent to abandon the action so as to warrant denial of the vacatur motion.

Amondi v. Promise Home Care Agency, Inc., NY Slip Op 03754 (1st Dep't June 16, 2026)

Here is the decision.

Moving to dismiss

A defendant moving for summary judgment dismissing a cause of action alleging negligence may generally sustain its prima facie burden by negating a single essential element of that cause of action. In determining the motion, the evidence must be viewed in the light most favorable to the non-moving party. The motion will not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility.

Brendel v. County of Suffolk, NY Slip Op 03660 (2d Dep't June 10, 2026)

Here is the decision.

Admissibility of translations

Defendant's supporting affidavit, which was translated from Spanish to English, is inadmissible because it was not accompanied by an affidavit attesting to the translator's qualifications and to the accuracy of the translation, and, thus, failed to comply with CPLR 2101(b).

Carranza-Rafael v. LRC Constr., LLC, NY Slip Op 03728 (1st Dep't 2026)

Here is the decision.

Contract law

With three exceptions, the general rule is that a contractual obligation, standing alone, does not give rise to tort liability in favor of a third party.

Aguilar-Lopez v. Idust Cleaning Servs. Corp., NY Slip Op 03726 (1st Dep't June 11, 2026)

Here is the decision.

Flag Day

Dismissal for failure to prosecute

Defendant satisfied the prerequisites of CPLR 3216 by serving plaintiff with the court's order which warned that failure to file a note of issue within 90 days would result in dismissal of the action. Plaintiff failed to timely serve and file a note of issue or move to extend the time in which to comply with the demand. It was only after defendant moved to dismiss for failure to prosecute that plaintiff filed a note of issue, almost two years after service of the order and six months after a second service of the order.

Plaintiff's conclusory and unsubstantiated claim of law office failure due to firm relocations and staffing changes failed to establish a justifiable excuse for the delay.

The court's scrivener's error in its sole reference to CPLR 3126 instead of CPLR 3216 did not render the order defective where the court repeatedly referred to and quoted from CPLR 3216, making it clear that the action was dismissed under the governing standards of the correct statute.

Aguilar v. TMP Wireless, Inc., NY Slip Op 03725 (1st Dep't June 11, 2026)

Here is the decision.

Entry of judgment

Pursuant to CPLR 3215(c), "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed." It is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal. As long as proceedings are being taken, and those proceedings manifest an intent not to abandon the action but to seek entry of judgment, the complaint should not be subject to dismissal.

Bank of N.Y. Mellon v. Hamawi, NY Slip Op 03659 (2d Dep't June 10, 2026)

Here is the decision.

Depositions

Pursuant to 22 NYCRR 202.20-b(a)(2), unless otherwise stipulated to by the parties or ordered by the court, "depositions shall be limited to 7 hours per deponent." However, "[f]or good cause shown, the court may alter the limits on the number of depositions or the duration of an examination," pursuant to § 202.20-b[f]. Good cause may be based on improper conduct or obstruction by the deponent or the attorney, or a proper showing that 7 hours was an insufficient amount of time within which to complete the deposition under the circumstances of the case.

Abad v. 288 Water St. Owner, LLC, NY Slip Op 03416 (2d Dep't June 3, 2026)

Here is the decision.

Leave to amend

Leave will be denied where the proposed cause of action is palpably insufficient and patently devoid of merit.

75 Cohoes Realty Assoc., LLC v. Machnick Bldrs., Ltd., NY Slip Op 03415 (2d Dep't June 3, 2026)

Here is the decision.

Renewal

A motion to renew is a request by a party for the court to consider anew a prior motion in light of new facts or a change in the law that would change the determination of the prior motion, pursuant to CPLR 2221[e][2]. 

Estate of Margaret Kainer v. Christies, Inc., NY Slip Op 03506 (1st Dep't June 4, 2026)

Here is the decision.

Summary judgment

Defendants cannot sustain their prima facie burden on their summary judgment motion merely by pointing to other possible causes of the crash, as there can be more than one proximate cause of an accident and there is no requirement that a plaintiff exclude every possible cause other than a defendant's breach of duty. 

DeRobertis v. City of New York, NY Slip Op 03505 (1st Dep't June 4, 2026)

Here is the decision.

Appellate practice

The appeal must be dismissed because no appeal lies from denial of a motion for reargument.

Anthony Partners, LLC v. Mici, NY Slip Op 03502 (1st Dep't June 4, 2026)

Here is the decision.

1944

Indemnification

When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed. The intention to indemnify in the context of an intraparty dispute must be unmistakably clear from the language of the promise and exclusively or unequivocally referable to claims between the parties themselves,

Board of Mgrs. of the 432 Park Condominium v. 56th & Park (NY) Owner, LLC, NY Slip Op 03381 (1st Dep't June 2, 2026)

Here is the decision.

Failure to prosecute

Supreme Court providently dismissed the action for failure to prosecute. Defendant satisfied the requirements of CPLR 3216 (b) and plaintiff failed to show a reasonable excuse for not serving and filing a note of issue within 90 days of defendant's demand or for the delay in prosecuting this action before and after receiving the demand. Plaintiff also failed to submit an affidavit of merit from a person with knowledge of the facts supporting his claim of negligence, as required by CPLR 3216(e). Plaintiff's response to defendant's discovery demands in opposition to the CPLR 3216 motion does not relieve him from the statutory requirements.

Ali v. K&H Steinway, LLC, NY Slip Op 03380 (1st Dep't June 2, 2026)

Here is the decision.

Vacatur

A party seeking to vacate a default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion. Determining what constitutes a reasonable excuse lies within the sound discretion of the trial court. In making such a determination, the court may excuse delay or default resulting from law office failure. However, mere neglect is not a reasonable excuse.

Tulloch v. Barka, NY Slip Op 03330 (2d Dep't May 27, 2026)

Here is the decision.

Disqualification of counsel

To the extent defendant seeks litigation counsel's disqualification, she lacks standing because she does not allege that she is or was in an attorney-client relationship with it or that its representation of plaintiff would somehow result in the disclosure of confidential information.

Wells Fargo Bank, N.A. v. Whyte, NY Slip Op 03375 (1st Dep't May 287, 2026)

Here is the decision.

Foreclosures

A plaintiff has standing in a mortgage foreclosure action when it is the holder or assignee of the underlying note at the time the action is commenced. Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident.

Deutsche Bank Natl. Trust Co. v. Julius, NY Slip Op 03291 (2d Dep't May 27, 2026)

Here is the decision.

Premises liability

In cases involving fallen trees, a property owner will only be held liable for a tree that falls outside of its premises and injures another if it knew or should have known of the defective condition of the tree. In order to constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it.

Whitney v. Lawson, NY Slip Op 03332 (2d Dep't May 27, 2026)

Here is the decision.

Affirmative defenses

The affirmative defenses are dismissed as conclusory and not factually supported, and the defenses specifically addressed lack merit. With respect to laches, defendant failed to present evidence of prejudice arising from plaintiff's purported delay. Defendant also asserted the defense of impossibility based on plaintiff's alleged refusal to provide him access to the apartment for the purpose of obtaining insurance. However, defendant did not submit evidence to support his contention that he was unable to obtain the requisite insurance or that it was objectively impossible, to do so because the record reflects that he was given access on several occasions. The insurance broker's email stating "it is extremely difficult, if not impossible, to secure coverage" for a vacant apartment where property damage exists does not establish that it was impossible for defendant to obtain coverage.

71st St.-Lexington Corp. v. Frankel, NY Slip Op 03358 (1st Dep't May 28, 2026)

Here is the decision.

Contract law

In order to create a binding and enforceable contract, there must be a showing that the parties are in agreement as to all material terms.

Babadzhanov v. B & L Health, Inc, NY Slip Op 03284 (2d Dep't May 27, 2026)

Here is the decision.

Discovery sanctions

The drastic remedy of striking a party's pleading for failure to comply with a discovery order is appropriate only where the moving party conclusively demonstrates that the non-disclosure was willful, contumacious, or in bad-faith. Willful and contumacious conduct may be shown through failure to comply with court orders, in the absence of adequate excuses. Although it generally is within the discretion of the motion court to determine the appropriate penalty, the Appellate Division is vested with its own discretion and corresponding power to substitute its discretion for the trial court's, even in the absence of abuse of discretion.

Ochoa v. C.I. Lobster Corp., NY Slip Op 03274 (1st Dep't May 26, 2026)

Here is the decision.

Piercing the corporate veil

The complaint's conclusory, information-and-belief allegation that the individual defendant exercised dominion and control over the corporate defendant is insufficient to support alter ego liability.

Soleil Chartered Bank v. Breton Equity Co. Corp., NY Slip Op 03280 (1st Dep't May 26, 2026)

Here is the decision.

Appellate practice

No appeal lies from an order or judgment granted upon the default of the appealing party, pursuant to CPLR 5511.

U.S. Bank, N.A. v. Gowrie, NY Slip Op 03197 (2d Dep't May 20, 2026)

Here is the decision.

Contract law

The unjust enrichment claim is dismissed as duplicative of plaintiff's breach of contract claim, as the parties do not dispute that there was an implied contract between plaintiff and defendant, even if they disagree about its terms.

Tapinekis v. Pace Univ., NY Slip Op 03167 (1st Dep't May 19, 2026)

Here is the decision.

Employment law

In this action alleging disability discrimination under the State and City's Human Rights Laws, plaintiff's summary judgment motion is denied and defendant's cross-motion to dismiss is granted. There is no evidence that defendants made pejorative comments about people with COVID or treated similarly situated employees differently based on their COVID status. Evidence that defendants required plaintiff to present a negative COVID test to return to work does not permit an inference of discriminatory animus. On the contrary, the New York City Commission on Human Rights provides that, "[c]onsistent with employers' need to take reasonable steps to protect the health and safety of their businesses, employers may require employees to provide evidence of their ability to safely return to the workplace after recovering from COVID-19 and to confirm that they are not contagious."

Frantz v. XL Diamonds, LLC, NY Slip Op 03067 (1st Dep't May 14, 2026)

Here is the decision.

Motions to intervene

Intervention is to be liberally granted, pursuant to CPLR 1012 and 1013, whether sought as of right or in the court's discretion. However, it is warranted only where the proposed intervenor demonstrates a real and substantial interest in the outcome of the proceeding.

Bapaz NYC W. St. Group, LLC v. Assa Props., Inc., NY Slip Op 03061 (1st Dep't May 14, 2026)

Here is the decision.

Appellate practice

The denial of defendant's letter application for leave to file a motion to vacate the judgment of foreclosure and sale is not appealable as of right because it did not decide a motion made upon notice, pursuant to CPLR 5701 [a] [2].

Tribeca Lending Corp. v. Bartlett, NY Slip Op 03092 (1st Dep't May 14, 2026)

Here is the decision.

Leave to amend

Leave to amend a pleading should be freely given absent prejudice to the non-moving party, pursuant to CPLR 3025(b). However, a motion for leave to amend should be denied when the proposed amendments are palpably insufficient as a matter of law or fail to state a cause of action. Here, the proposed amended answer consists of a recitation of the elements of the claim and conclusory allegations based upon information and belief. Motion denied.

Wiener Realty Mgt., LLC v. One Penn Plaza, LLC, NY Slip Op 03094 (1st Dep't May 14, 2026)

Here is the decision.

Discovery disputes

Motions relating to discovery disputes must include an affidavit of a good-faith effort to resolve the dispute without judicial intervention.

Howari v. New York City Health & Hosp. Corp., NY Slip Op 03059 (2d Dep't May 14, 2026)

Here is the decision.

Appellate practice

Plaintiff's argument that the affidavit of defendant's vice president was not based on personal knowledge was not raised below, depriving defendant of an opportunity to cure the defect, and so the issue is unpreserved.

Adames v. Galaxy Gen. Contr. Corp., NY Slip Op 03054 (1st Dep't May 14, 2026)

Here is the decision.

Legal malpractice

The statute of limitations for a cause of action to recover damages for legal malpractice is three years, which accrues at the time the malpractice is committed, not when the client discovers it. However, causes of action alleging legal malpractice which would otherwise be barred by the statute of limitations are timely if the doctrine of continuous representation applies. For the continuous representation doctrine to apply, there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney, which often includes an attempt by the attorney to rectify an alleged act of malpractice.

Chester v. List, NY Slip Op 02962 (2d Dep't May 13, 2026)

Here is the decision.

Extending time to serve

Supreme Court providently exercised its discretion in granting plaintiff leave to amend and in extending plaintiff's time to serve the amended complaint in the interest of justice, pursuant to CPLR 306-b, 3025[b]). Plaintiff failed to serve Charter within the 120-day period provided in CPLR 306-b, but plaintiff demonstrated that Charter had actual notice of plaintiff's claim shortly after plaintiff filed the original pleadings, that she has a potentially meritorious claim, that the statute of limitations expired, and that she ultimately effectuated service on Charter. Charter failed to show that it was prejudiced by the extension as there is no evidence that the delay in service impaired Charter's ability to investigate the claim or defend it on the merits, and the mere passage of time is insufficient to create prejudice.

Blount v. Verizon, NY Slip Op 02918 (1st Dep't May 12, 2026)

Here is the decision.

Contract law

The existence of a valid contract governing the subject matter precludes recovery in quasi contract for events arising out of the same subject matter.

Harbord v. A.J. Richard & Sons, Inc., NY Slip Op 02827 (2d Dep't May 6, 2026)

Here is the decision.

Referees' reports

The report should be confirmed whenever the findings are substantially supported by the record and the referee has clearly defined the issues and resolved matters of credibility. However, the referee's findings and recommendations are advisory only and have no binding effect on the court, which remains the ultimate arbiter of the dispute.

Federal Natl. Mtge. Assn. v. McDonald, NY Slip Op 02826 (2d Dep't May 6, 2026)

Here is the decision.

Leave to amend

The Supreme Court providently exercised its discretion in denying the plaintiffs' cross-motions for leave to amend the complaint, as the action had already been certified as ready for trial, approximately 2½ years had passed since the plaintiffs filed the complaint, the new causes of action were based on facts that the plaintiffs had been aware of since the commencement of the action, and the plaintiffs did not provide any excuse for their delay in seeking leave to amend the complaint to add those causes of action.

Dwyer v. Montefiore New Rochelle Hospital, NY Slip Op 02825 (2d Dep't May 6, 2026)

Here is the decision.

Dismissal based on documentary evidence

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the moving party's documentary evidence utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law. In order to be considered documentary, the evidence must be unambiguous and of undisputed authenticity. Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and other papers, the contents of which are essentially undeniable, may qualify as documentary evidence.

Dimas Tower, Inc. v. North Shore Towers Apts., Inc., NY Slip Op 02822 (2d Dep't May 6, 2026)

Here is the decision.

Appellate practice

No appeal lies as of right from an order which did not decide a motion made upon notice, including an order entered sua sponte, pursuant to CPLR 5701[a][2].

Citizens Bank, N.A. v. Abrams, NY Slip Op 02819 (2d Dep't May 6, 2026)

Here is the decision.

1945

Summary judgment

Defendant's assertion that he is entitled to summary judgment because plaintiff did not serve an expert affidavit by the court-ordered deadline constitutes an effort to point out gaps in the plaintiff's proof. Gaps in plaintiff's proof, however, cannot serve as a basis to grant defendant's motion, on which, as the moving party, he bears the burden.

Allen v. Thompson, NY Slip Op 02771 (1st Dep't May 5, 2026)

Here is the decision.

Discovery

The reasonable production expenses of a non-party witness are defrayed by the party seeking discovery, pursuant to CPLR 3111, 3122[d].

Matter of Peerenboom v. Marvel Entertainment, LLC, 2026 N.Y. App. Div. LEXIS 2903, 1st Dep't April 30, 2026

Employment law

An employer may be vicariously liable for the torts of its employee acting within the scope of employment, but a claim against the employer does not necessarily preclude a separate claim against the employee. It is immaterial to an agent's liability that the agent's tortious conduct may, additionally, subject the principal to liability. 

Castellazzo v. David's New Beginnings, LLC, 2026 N.Y. App. Div. LEXIS 2818, 2d Dep't April 29, 2026

Injunctive relief

In order to obtain a preliminary injunction, the movant must establish: (1) a likelihood of success on the merits; (2) irreparable injury absent the injunction, and (3) a balancing of the equities in the movant's favor. The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court. Absent unusual or compelling circumstances, appellate courts are reluctant to disturb that determination.

Beckett v. Estate of Thomas Beckett, 2026 N.Y. App. Div. LEXIS 2796, 2d Dep't April 29, 2026

Orders of preclusion

A conditional order of preclusion requires a party to provide specific discovery by a date certain, or incur sanctions. If the party fails to produce the discovery on time, the conditional order becomes absolute.

Bank of Am., N.A. v. Sarwar, NY Slip Op 02621 (2d Dep't April 29, 2026)

Here is the decision.

Jurisdictional questions

Pursuant to CPLR 5015(a)(4), "[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person . . . upon the ground of . . . lack of jurisdiction to render the judgment or order." Where a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), and seeks a discretionary vacatur pursuant to CPLR 5015(a)(1), the court must resolve the jurisdictional question before determining whether to grant a discretionary vacatur of the default.

Atlantica, LLC v. Hunte, NY Slip Op 02619 (2d Dep't April 29, 2026)

Here is the decision.

Failure to oppose a motion

In order to vacate a default in opposing a motion pursuant to CPLR 5015(a)(1), the moving party is required to demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion. The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court. Ignorance of the law, failure to retain an attorney, and confusion about the date of a conference do not constitute reasonable excuses.

166 N. 7 St., LLC v. Sung Kyu Khim, NY Slip Op 02617 (2d Dep't April 29, 2026)

Here is the decision.

The admissibility of translations

The proponent of translated evidence has the burden of demonstrating that the translation was provided by a competent, objective interpreter whose translation was accurate. Generally, a certification that the translator is professionally qualified and is competent in both languages is sufficient. Here, however, the translator attestations state only that each translator was fluent in both Spanish and English, with no indication of any other credentials.

Gavilanes v. 919 Ground Lease, LLC, NY Slip Op 02451 (1st Dep't April 23, 2026)

Here is the decision.

Failure to answer or appear

On a motion for leave to enter judgment against a defendant for the failure to answer or appear, a plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defendant's default. In opposition, the defendant must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action.

Goode v. Bespoke Motor Group, LLC, NY Slip Op 02395 (2d Dep't April 22, 2026)

Here is the decision.

Adding a defendant

The relation-back doctrine permits the commencement of claims against a party that has not been timely sued, but which relate back to the original timely complaint. The plaintiff must establish all three prongs of the test for the addition of untimely claims or parties: (1) the new claims arise out of the same conduct, transaction, or occurrence as that alleged in the original complaint; (2) the party to be added must be united in interest with one or more of the original defendants; and (3) the newly-added defendant knew, or should have known, that the action would have been timely commenced against it but for the plaintiff's  mistake as to the identity of the proper parties.

DiMiceli v. Credit Shelter Trust, NY Slip Op 02391 (2d Dep't April 23, 2026)

Here is the decision.

Recusal

The assigned Justice was not a party to and had not been an attorney in this proceeding, and petitioner does not contend that the Justice had an interest in the proceeding or was related to the parties.  It is of no consequence that the Justice was represented by the Office of the Attorney General in unrelated litigation before the Appellate Division. In the absence of any statutorily mandated disqualification and any legitimate suggestion of bias or impartiality, the assigned Justice's decision not to recuse was appropriate.

Matter of DuBose v. City of New York, NY Slip Op 02449 (1st Dep't April 23, 2026)

Here is the decision.

Appellate practice

Before filing the notice of appeal, the appellant failed to appear in this action and did not oppose either the motion for a default judgment and an order of reference or the motion for an order confirming the Referee's report and granting a final judgment of foreclosure and sale. Accordingly, the appellant is not aggrieved by Supreme Court's grant of plaintiff's motions, and may not appeal from the resulting orders. The Appellate Division need not consider the appellant's arguments for affirmative relief.

Deutsche Bank Natl. Trust Co. v. Adekola, NY Slip Op 02448 (1st Dep't April 23, 2026)

Here is the decision.

Declaratory judgments

Pursuant to CPLR 3001, "[t]he supreme court may render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy." The demand for relief in the complaint must specify the rights and other legal relations on which the declaration is requested, pursuant to CPLR 3017[b]. On a motion to dismiss the complaint, the issue is whether a cause of action for declaratory relief has been stated, not whether the plaintiff is entitled to a favorable declaration.

Cox v. First Citizens Bancshares, Inc., NY Slip Op 02388 (2d Dep't April 22, 2026)

Here is the decision.

Contract law

Choice of law provisions typically apply only to substantive issues. In the absence of an express intention that a specific statute of limitations is to apply to the dispute, a choice of law provision cannot be read to encompass the limitations period.

Cincinnati Terrace Member LLC v. Tartar Krinsky & Drogin LLC, NY Slip Op 02369 (1st Dep't April 21, 2026)

Here is the decision.

Summary judgment motions

An affidavit submitted in opposition to the motion that merely raises what appear to be feigned issues of fact designed to avoid the consequences of earlier deposition testimony is insufficient to defeat summary judgment.

Brener v. Queens Blvd. Extended Care Facility Corp., NY Slip Op 02240 (2d Dep't April 15, 2026)

Here is the decision.

Appellate practice

Supreme Court effectively granted plaintiff's motion for leave to reargue when it considered the merits of the motion. Therefore, it is reviewable on appeal.

Feifei Gu v. Henry, NY Slip Op 02332 (1st Dep't April 16, 2026)

Here is the decision.

Motions to dismiss

Bare legal conclusions with no factual specificity in the complaint are insufficient to survive a motion to dismiss.

Berl v. CNH Operating, LCC, NY Slip Op 02238 (2d Dep't April 15, 2026)

Here is the decision.

Discovery disputes

The supervision of discovery and the setting of reasonable terms and conditions for disclosure are matters within the sound discretion of the trial court, as is the determination whether to strike a pleading and the nature and degree of any sanction to be imposed.  The striking of a party's pleading is a drastic remedy that is warranted only on a clear showing of a willful and contumacious failure to comply with discovery demands.

American Tr. Ins. Co. v. Hackensack Surgery Ctr., LLC, NY Slip Op 02235 (2d Dep't April 15, 2026)

Here is the decision.

Dismissal on the ground of documentary evidence

Plaintiff seeks to hold defendant liable for allegedly fraudulently inducing it to purchase real property. At the closing, defendant executed a certification concerning six apartments in the property, swearing that "no rent has ever been paid by the occupants" of the apartments, and alleging that the occupants of the apartments "are not tenants." However, schedule 8.1(k) in the closing binder set forth the "actual rents billed by [defendant] to the tenants of the premises."

The complaint is dismissed, pursuant to CPLR 3211[a][1], as the documentary evidence conclusively refutes the cause of action. The parties' purchase and sale agreement contained a merger clause, which incorporated the terms of schedule 8.1(k) into the agreement. Further, plaintiff agreed to purchase the property "as is" and "where is." These terms in the parties' agreement bar plaintiff's claim arising out of reliance on the purported misrepresentations.

ABJ 105, LLC v. Martinez, NY Slip Op 02327 (1st Dep't April 16, 2026)

Here is the decision.

Dismissal as time-barred

Pursuant to CPLR 3211(a)(5), a moving defendant must establish, prima facie, that the time within which to commence an action has expired. On this threshold showing, the burden shifts to the party opposing the motion to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether the action was actually commenced within the limitations period.

Parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations. An agreement which modifies the limitations period by specifying a shorter, but reasonable, period within which to commence an action is enforceable provided it is in writing.

Extech Bldg. Materials, Inc. v. J Cos., LLC, NY Slip Op 01770 (2d Dep't March 25, 2026)

Here is the decision.

Employment law

Under the common-law doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by employees acting within the scope of their employment. The employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment. An employer is not liable for assaults or other criminal acts committed by an employee under the theory of respondeat superior where those acts are not in furtherance of the business or within the scope of the employment.

Doe v. Yeshiva of Brooklyn, NY Slip Op 01769 (2d Dep't March 25, 2026)

Here is the decision.

Service of process

Pursuant to CPLR 306-b, a court may, in the exercise of its discretion, grant an extension of time within which to effect service for good cause shown or in the interest of justice. In order to establish good cause, a plaintiff 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, 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.

Deutsche Bank Natl. Trust Co. v. Groder, NY Slip Op 01767 (2d Dep't March 25, 2026)

Here is the decision.

Writs of mandamus

Mandamus does not lie to compel a discretionary act rather than a ministerial one, pursuant to CPLR 7803[1].

Matter of Gomez v. New York City Dept. of Bldgs., NY Slip Op 01915 (1st Dep't March 31, 2026)

Here is the decision.

Contract law

In New York, all contracts imply a covenant of good faith and fair dealing in the course of performance. The covenant is a pledge that neither party will do anything which will have the effect of destroying or injuring the other party's right to the fruit of the contract, even if the contractual terms do not explicitly prohibit such conduct. The duty of good faith and fair dealing is not without limits, and no obligation can be implied that would be inconsistent with other terms of the contractual relationship.

Zormati v. Citibank, N.A., NY Slip Op 01821 (2d Dep't March 25, 2026)

Here is the decision.

Appellate practice

Generally, an argument may not be raised for the first time on appeal. There is an exception for a pure question of law, evident on the face of the record, which could not have been avoided if it had been  raised at the proper point.

Citimortgage, Inc. v. Weaver, NY Slip Op 01760 (2d Dep't March 25, 2026)

Here is the decision.

Motions to discontinue

The mere pendency of a motion for summary judgment is not itself a special circumstance warranting denial of a motion to discontinue, pursuant to CPLR 3217(b).

Canara Bank, London Branch v. MVP Group Intl., Inc., NY Slip Op 01868 (1st Dep't March 26, 2026)

Here is the decision.

Appellate practice

Plaintiffs do not address the merits of the order on appeal or the sanctions it imposed. Therefore, plaintiffs' appeal from that order is deemed abandoned and is dismissed.

Drew v. U-Haul Intl., Inc., NY Slip Op 01914 (1st Dep't March 31, 2026)

Here is the decision.

A court's continuing jurisdiction

During the pendency of an action, courts retain continuing jurisdiction to reconsider their prior interlocutory orders. So, the court may properly exercise its discretion to consider an untimely motion to reargue.

Daniello v. J.T. Magen & Co., Inc., NY Slip Op 01913 (1st Dep't March 31, 2026) 

Here is the decision.

Contract law

The best evidence of what the parties to an agreement intended is what they set forth in their writing. When interpreting a contract, the court must read the document as a whole to determine the parties' purpose and intent, giving a practical interpretation to the language used so that the parties' reasonable expectations are realized. The conclusion that a party's promise should be ignored as meaningless is, at best, a last resort.  The statute of limitations for a cause of action alleging breach of contract is six years, and the cause of action accrues at the time of the breach.

Breslin Brookhaven, LLC v. Rose, NY Slip Op 01756 (2d Dep't March 25, 2026)

Here is the decision.

Declaratory judgments

A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration. The general purpose of the declaratory judgment is to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations. Where a cause of action is sufficient to invoke the court's power to render a declaratory judgment as to the rights and other legal relations of the parties to a justiciable controversy, a motion to dismiss that cause of action should be denied.

Breslin Brookhaven, LLC v. Rose, NY Slip Op 01757 (2d Dep't March 25, 2026)

Here is the decision.

Evidentiary matters

In this personal injury action, any shortcomings in the witnesses' memory or perception merely go to credibility and the weight of the evidence, not its competence. The value to be accorded to the evidence is a matter for resolution by the trier of fact.

Pichardo v. George Units, LLC, NY Slip Op 01926 (1st Dep't March 31, 2026)

Here is the decision.

Suing John Doe

Pursuant to CPLR 1024, "[a] party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much of his name and identity as is known. If the name or remainder of the name becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly." In order to be effective, a summons and complaint must describe the unknown party in such a manner that the John Doe would understand that he is the intended defendant by a reading of the papers. An insufficient description subjects the John Doe complaint to dismissal for being jurisdictionally defective. Parties may not resort to the John Doe procedure unless, prior to the running of the statute of limitations, they exercise due diligence to identify the defendant by name and, despite such efforts, are unable to do so. Any failure to exercise due diligence to ascertain the John Doe's name subjects the complaint to dismissal as to that party.

M.C.-B v. County of Suffolk, NY Slip Op 01758 (2d Dep't March 25, 2026)

Here is the decision.

"Surrexit Dominus."

Watch Night

Stabat Mater

"Quid est veritas?"

Spy Wednesday

Appellate practice

Although the order is not appealable as of right, the Appellate Division deems the notice of appeal to be an application for leave to appeal, pursuant to CPLR 5701(c), and grants leave.

Robinson v. Redleaf Capital, LLC, NY Slip Op 01863 (1st Dep't March 26, 2026)

Here is the decision.

Spoliation

Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned.  A party that seeks sanctions for spoliation must show that the party having control over the evidence was obliged to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense. A culpable state of mind for purposes of a spoliation sanction includes ordinary negligence. However, in the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices.

Atsaves v. El Caribe Caterers, LLC, NY Slip Op 01752 (2d Dep't March 25, 2026)

Here is the decision.

Palm Sunday

Motion practice

Because summary judgment is granted in favor of the moving defendants, the cross-claims against them for common-law indemnification and contribution are dismissed.

Rodriguez v. Madison Sec. Group, Inc., NY Slip Op 01869 (1st Dep't March 26, 2026)

Here is the decision.

Attorneys' fees

A reasonable attorney's fee is commonly understood to be a fee which represents the reasonable value of the services rendered. In determining the reasonable value of the legal services rendered, the court may consider a number of factors, including the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented, the lawyer's experience, ability, and reputation, the customary fee charged for similar services, and the results obtained. While a hearing is not required in all circumstances, the court must possess sufficient information upon which to make an informed assessment of the reasonable value of the legal services rendered.

American Tr. Ins. Co. v. Barakat PT PC, NY Slip Op 01750 (2d Dep't March 25, 2026)

Here is the decision.

Receivership law

A receiver or its agent generally cannot be sued absent prior permission of the court that appointed the receiver. One exception to the requirement of prior permission is where the receiver or agent has acted ultra vires. Determination of whether a receiver's conduct is ultra vires turns on the scope of the receivership and the obligations, duties, and tasks set out by the receivership order.  A receiver who is acting within the scope of his role cannot be sued without prior permission.

Seaton v. Babad, NY Slip Op 01745 (1st Dep't March 24, 2026)

Here is the decision.

Attorney-client privilege

An attorney's transcription of a conference call does not constitute privileged material or attorney work product. Therefore, its voluntary disclosure by plaintiffs did not effectuate a broad subject matter waiver of otherwise privileged documents.

Gurney-Goldman v. Soil Mgt., LLC, NY Slip Op 01596 (1st Dep't March 19, 2026)

Here is the decision.

Stipulations of settlement

Plaintiff's motion to restore the action or vacate the parties' stipulation of settlement is denied. as the stipulation was neither procedurally nor substantively unconscionable. Plaintiff was represented by counsel at all times and the terms were so-ordered by Supreme Court. The stipulation's terms were not so grossly unreasonable or unconscionable as to warrant vacatur.

Fiondella v. 345 W. 70th Tenants Corp., NY Slip Op 01595 (1st Dep't March 19, 2026)

Here is the decision.

Slips, trips, and falls

In this negligence action involving a trip and fall on a sidewalk, the daily logs with photographs relied upon by defendant, a contractor hired to perform construction work at the premises, failed to demonstrate that it did not perform any work on the sidewalk before plaintiff's accident. Accordingly, the documentary evidence did not conclusively establish, as a matter of law, a defense to plaintiff's claims.

In any event, plaintiff raised an issue of fact in opposition to the motion by submitting evidence that, two months before plaintiff's accident, defendant received a violation from the New York City Department of Transportation for maintaining a plywood fence on the sidewalk without a permit. Therefore, there is an issue of fact as to whether defendant may have launched a force or instrument of harm that caused plaintiff's accident.

Defendant's request for sanctions is denied because plaintiff's claims cannot be deemed frivolous.

De Perez v. Fordham Valentine Assoc., LLC, NY Slip Op 01594 (1st Dep't March 19, 2026)

Here is the decision.

Employment law

Under the common-law doctrine of respondeat superior, an employer - including the State - may be held vicariously liable for torts, including intentional torts, committed by employees acting within the scope of their employment, provided that the tortious conduct is generally foreseeable and a natural incident of the employment. In determining whether an employee was acting within the scope of employment for purposes of vicarious liability, courts look to several factors, including the connection between the time, place, and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated. In cases involving a use of force, whether an employee is acting within the scope of employment requires consideration of whether the employee was authorized to use force to effectuate the goals and duties of the employment.

Bracero v. State of New York, NY Slip Op 01484 (2d Dep't March 18, 2026)

Here is the decision,.

Discovery

Any matter which may lead to admissible proof is discoverable, as is any matter which bears upon a defense, even if the facts themselves are not admissible. The test is one of usefulness and reason. The supervision of discovery and the setting of reasonable terms and conditions are within the sound discretion of the trial court. Personnel records are discoverable where the plaintiff alleges a cause of action to recover damages for negligent hiring, retention, or supervision.

Black v. Archdiocese of N.Y., NY Slip Op 01483 (2d Dep't March 18, 2026)

Here is the decision.

Assumption of the risk

Under the primary assumption of risk doctrine,  a person who chooses to participate in a sport or recreational activity consents to certain risks that are inherent in and arise out of the nature of the sport and that flow from such participation. In order to invoke the doctrine, it is not necessary that the injured plaintiff foresaw the exact manner in which the injury occurred, as long as the plaintiff was aware of the potential for injury of the mechanism from which the injury resulted.

T.A. v. Town of Riverhead, NY Slip Op 01480 (2d Dep't March 18, 2026)

Here is the decision.

Appellate practice

CPLR 5526 requires that a record on appeal contain the papers and exhibits upon which the order appealed from was founded. It is the obligation of the appellant to assemble a proper record on appeal.

United Store Fixtures & Importers Corp. v. New York City Economic Dev. Corp., NY Slip Op 01395 (2d Dep't March 11, 2026)

Here is the decision.

Jurisdiction

Pursuant to CPLR 5015(a)(4), "[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person . . . upon the ground of . . . lack of jurisdiction to render the judgment or order." Where a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), and seeks a discretionary vacatur pursuant to CPLR 5015(a)(1), the court must resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1).

U.S. Bank, N.A. v. Warner 26, Inc., NY Slip Op 01393 (2d Dep't March 11, 2026)

Here is the decision.

Motions to dismiss

In order to dismiss on the basis of a prior action pending, pursuant to CPLR 3211(a), a court needs to find substantial, not complete, identity of the parties across the relevant actions and that both actions arise out of the same subject matter or series of alleged wrongs.

Gray v. Nassau Life Ins. Co., NY Slip Op 01403 (1st Dep't March 12, 2026)

Here is the decision.

Premises liability

An owner of a baseball field is not an insurer of the safety of its spectators, but as with any other owner of occupier of land, it is only under a duty to exercise reasonable care under the circumstances to prevent injury to those who come to watch the games being played on its field.

Swanson v. Queens Ballpark Co., LLC, NY Slip Op 01392 (2d Dep't March 11, 2026)

Here is the decision.

Defaults

A defaulting defendant is deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow therefrom.

Schreiber v. Nissan Lift of N.Y., Inc., NY Slip Op (2d Dep't March 11, 2026)

Here is the decision.

Unjust enrichment claims

The plaintiff must allege that (1) the other party was enriched, (2) at the plaintiff's expense, and (3) it is against equity and good conscience to permit the other party to retain what is sought to be recovered. The plaintiff must establish that it conferred a benefit on the other party and that the other party will retain that benefit without adequate compensation. There must be a showing of reliance, and the claim is based on an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties. While privity is not required, the cause of action will not be supported if the connection between the parties is too attenuated. Further, the claim is not available where it simply duplicates or replaces a conventional contract or tort claim.

Ryan v. Guadagnino, NY Slip Op 01390 (2d Dep't March 11, 2026)

Here is the decision.

Contract law

The threshold question with respect to any contract-based cause of action is whether a binding contract was ever formed. In order to create a binding contract, there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms. Courts look to the basic elements of the offer and acceptance to determine whether there is an objective meeting of the minds sufficient to give rise to a binding and enforceable contract. An offer not given for consideration may be revoked at any time, and the moment of acceptance is the moment the contract is created. In the case of a contract conveying an interest in real property, the statute of frauds requires that an agreement be reduced to a written instrument signed by the party against whom the plaintiff seeks to enforce the agreement. Here, the contract lacked the signature of one of the sellers and so no binding and enforceable contract was formed.

Real-X Realty, LLC v. Crest Bellport, LLC, NY Slip Op 01389 (2d Dep't March 11, 2026)

Here is the decision.

A court's inherent authority

A court has the inherent discretionary authority to vacate its own order in the interests of substantial justice when unique or unusual circumstances warrant such relief. A court's exercise of its inherent authority to vacate an order or judgment in the interests of substantial justice should ordinarily be reserved for instances involving evidence of fraud, mistake, inadvertence, surprise, or excusable neglect.

Brown-Wilks v. Vornado Realty Trust, NY Slip Op 01179 (2d Dep't March 4, 2026)

Here is the decision.

An insufficient fraud claim

The court properly dismissed plaintiffs' fraud claim, which is premised largely on allegations made on information and belief and fails to identify any materially false representations on which plaintiffs had relied.

SKYX Group Inc. v. Foundation for a Smoke-Free World, NY Slip Op 01330 (1st Dep't March 10, 2026)

Here is the decision.

Hearsay exceptions

Plaintiff's post-accident statements to his domestic partner and to the responding police officer that he fell on the defendant's scaffolding on the sidewalk are not admissible under the exceptions to the rule against hearsay as excited utterances or present-sense impressions. The statements were not contemporaneous with the incident, nor were they made while plaintiff was still under the stress of excitement after the fall.

Schiff v. Intersystem S&S Corp., NY Slip Op 01294 (1st Dep't March 5, 2026)

Here is the decision.

Vacatur

A party seeking to vacate an order or judgment entered upon a default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion, pursuant to CPLR 5015[a][1]. The court has discretion to accept law office failure as a reasonable excuse, pursuant to CPLR 2005, where there a detailed and credible explanation.

Black v. Taub, NY Slip Op 01177 (2d Dep't March 4, 2026)

Here is the decision.

Vexatious litigants

On an ample basis in the record, the court may direct a plaintiff to obtain judicial approval before engaging in further vexatious litigation.

Aziz v. Butt, NY Slip Op 01176 (2d Dep't March 4, 2026)

Here is the decision.

Commercial litigation

In order to establish a cause of action under General Business Law § 349, a plaintiff must allege that (1) the defendant's conduct was consumer oriented; (2) the act or practice was deceptive or misleading in a material way; and (3) there was an injury as a result of the deception. Private contract disputes, unique to the parties, do not fall within the ambit of the statute. A single transaction which is tailored to meet the purchaser's wishes and requirements does not constitute consumer-oriented conduct within the meaning of the statute.

Axos Bank v. Michael Gangi Plumbing & Heating Contrs., Inc., NY Slip Op 01175 (2d Dep't March 4, 2026)

Here is the decision.

Defamation

While the complaint adequately alleged the unauthorized, knowing, or reckless publishing of a false statement, the statement was not defamatory. Defendant's statement that plaintiff was "lying" was made in the context of a credit card chargeback dispute with plaintiff, who was defendant's customer. The statement, when viewed in this context, and viewed along with the remainder of defendant's written comment to the credit card company, constitutes non-actionable opinion.

Friedman v. Garnet Wine & Liqs., Inc., NY Slip Op 01161 (1st Dep't March 3, 2026)\

Here is the decision.

Account stated and quantum merit

Summary judgment on defendant's counterclaims for account stated and quantum merit is granted, as defendant demonstrated that plaintiff received, retained without objection, and partially paid invoices without protest.

North Flats, LLC v. Belkin Burden Goldman, LLP, NY Slip Op 01165 (1st Dep't March 3, 2026)

Here is the decision.

Amending a pleading

Applications to amend pleadings are within the sound discretion of the court. An application should be freely granted, absent prejudice or surprise directly resulting from a delay in seeking leave, unless the proposed amendment is palpably insufficient or patently devoid of merit, pursuant to CPLR 3025[b]. A proposed amendment that is time-barred is patently devoid of merit.

Becvar v. Our Lady of Consolation Nursing & Rehabilitation Ctr., NY Slip Op 01026 (2d Dep't February 25, 2026)

Here is the decision.

Binding stipulations

Defendants' argument that the judgment of foreclosure and sale should be vacated pursuant to CPLR 5015(a)(1) is unavailing, as the record reveals that defendants, through their counsel, consented to the entry of summary judgment in plaintiff's favor by attorney stipulation. The court properly declined to set aside the stipulation. Defendants contend that their counsel lacked authority to enter into a stipulation consenting to summary judgment, but a settlement agreement signed by an attorney may bind a client even where it exceeds the attorney's actual authority, if the attorney had apparent authority to enter into the agreement. Defendants failed to present any evidence that their former counsel, their attorney of record at the time of the stipulation, lacked apparent authority to sign the stipulation on their behalf. He was fully authorized to appear in the action on defendants' behalf and was in regular contact with them at all relevant times. In any event, defendants ratified the terms of the stipulation by failing to object to it for more than a year.

Defendants alternatively argue that judgment should be vacated in the interests of justice based on the payment they made to plaintiff, which they believed was for the purpose of curing their default, but that issue is unrelated to whether the stipulation is binding.

Global Bank v. 43 Mott Realty Owner, LLC, NY Slip Op 01125 (1st Dep't February 26, 2026)

Here is the decision.

Trial procedure

It is well-established that trial courts have broad authority to control courtroom proceedings. When an adverse party is called as a witness on the other party's case in chief, the court may permit the use of leading questions against that witness upon a showing of hostility, adversity, evasiveness, or uncooperativeness. 

Matter of Sheltering Arms Children's Servs. v. Yiweiz, NY Slip Op 01146 (1st Dep't February 26, 2026)

Here is the decision.

Notes of issue

When a plaintiff has failed to file a note of issue by a court-ordered deadline, the granting of a motion to restore the action to the active calendar is automatic, unless either a 90-day notice has been served pursuant to CPLR 3216 or there has been an order directing dismissal of the complaint pursuant to 22 NYCRR 202.27. In either of those circumstances, the court will consider whether the plaintiff had a reasonable excuse for failing to timely file the note of issue.

Alnoukari v. Nokari, NY Slip Op 01025 (2d Dep't February 25, 2026)

Here is the decision.

Leave to renew

A motion for leave to renew requires facts that were not offered on the prior motion and that would change the prior determination, pursuant to CPLR 2221[e][2]. The movant must explain why the new facts were not submitted on the prior motion, pursuant to CPLR 2221[e][3]. The Supreme Court may grant renewal upon facts known to the movant at the time of the original motion if there is a reasonable justification for not submitting the additional facts on the original motion.

Albertson Water Dist. v. Town of N. Hempstead, NY Slip Op 01024 (2d Dep't February 25, 2026

Here is the decision.

Injunctive relief

A party seeking a preliminary injunction must demonstrate a probability of success on the merits, the danger of irreparable injury in the absence of an injunction, and a favorable balance of equities.

Yemeni-American Assn., Corp. v. Alsaede, NY Slip Op 01151 (1st Dep't February 26, 2026)

Here is the decision.

Contract law

A party will be relieved from the consequences of a stipulation made during litigation only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident. A party seeking reformation of a contract by reason of a mistake must establish, with clear and convincing evidence, that the contract was executed under mutual mistake or a unilateral mistake induced by the other party's fraudulent misrepresentation.

Guzzetta v. Messina, NY Slip Op 00880 (2d Dep't February 18, 2026)

Here is the decision.

Res judicata

Under the doctrine of 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, The doctrine is grounded in public policy concerns and is intended to ensure finality, prevent vexatious litigation and promote judicial economy. However, in properly seeking to deny a litigant two days in court, courts must be careful not to deprive the litigant of one.

Guzzetta v. Messina, NY Slip Op 00879 (2d Dep't February 18, 2026)

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Attorneys' fees

The award of reasonable attorney's fees is within the sound discretion of the Supreme Court based upon such factors as the time and labor required, the difficulty of the issues involved, the skill required to handle the matter, and the effectiveness of the legal work performed. When there is a fee dispute between the current and discharged attorneys for the plaintiff in an action to which there is a contingent fee retainer, the discharged attorney may elect to receive compensation immediately based on quantum meruit or on a contingent percentage fee based on a proportionate share of the work performed on the whole case. 

Del Rosso v. Staten Is. Univ. Hosp., NY Slip Op 00877 (2d Dep't February 18, 2026)

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Expert witnesses

Challenges to an expert witness's qualifications go to the weight to be accorded the expert's views, not their admissibility. Experts need not be a specialist in a particular field if they have the knowledge necessary to opine on the issues presented. If the expert professes such knowledge, the issue of the expert's qualifications is for the fact-finder to determine.

Markman v. New York-Presbyt. Healthcare Sys, Inc., NY Slip Op 00976 (1st Dep't February 19, 2026)

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Contract law

Even if a party is not in breach of its express contractual obligations, it may be in breach of the implied covenant of good faith and fair dealing when it exercises a contractual right as part of a scheme to deprive the other party of the benefit of its bargain.

Dairy King, Inc. v. Boar's Head Provisions Co., Inc., NY Slip Op 00876 (2d Dep't February 18, 2026)

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Commercial litigation

A corporation may not proceed pro se, pursuant to CPLR 321[a]. 

Wah Win Group Corp. v. 979 Second Ave., LLC, NY Slip Op 01003 (1st Dep't February 19, 2026)

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Jurisdiction over a motion

Improper service of a motion provides a complete excuse for default on the motion and deprives the court of jurisdiction to entertain it. Failure to provide a defendant with proper notice of a motion renders the resulting order and judgment nullities, warranting vacatur pursuant to CPLR 5015(a)(4).

However, a defendant's participation in an action on the merits confers in personam jurisdiction on the court. 

Bharath v. Sitaram, NY Slip Op 00872 (2d Dep't February 18, 2026)

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Appellate practice

An argument that was not raised before Supreme Court is not preserved for appellate review.

The status conference order is appealable, as it was not issued sua sponte, but, instead, resolved plaintiff's letter application, which defendants opposed through their own letter submissions. The parties had the opportunity to be heard and there is a proper record for appellate review.

Perrotte v. Bloomberg, L.P., NY Slip Op 00632 (1st Dep't February 10, 2026)

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