Leave to amend.

Granting leave to amend a complaint to add a claim does not preclude dismissal of that claim on a subsequent motion.

Thoro-Graph, Inc. v. New York Racing Assn., Inc., NY Slip Op 01306 (1st Dep't March 6, 2025)

Here is the decision.

Motions to dismiss.

In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Defendants bear the burden of establishing that the complaint fails to state a viable cause of action.

Ramirez-Gomez v. Empire Today, LLC, NY Slip Op 01248 (2d Dep't March 5, 2025)

Here is the decision.

Appellate practice.

On their appeal, the plaintiffs advance arguments that appear to be without merit in law and/or a stalling tactic. Therefore, pursuant to 22 NYCRR 130-1.1[c][1], the appeal may be frivolous. The Appellate Division directs the submission of affirmations or affidavits on the issue of whether, and in what amount, costs or sanctions should or should not be imposed upon the plaintiffs and/or the plaintiffs' counsel.

Rahman v. Desch, NY Slip Op 01247 (2d Dep't March 5, 2025)

Here is the decision.

Admissibility of a hearing transcript.

The court properly denied that branch of the plaintiffs' motion seeking to preclude the defendants from offering into evidence transcripts of the plaintiffs' testimony at hearings held pursuant to General Municipal Law § 50-h. There is no provision within the CPLR, the General Municipal Law, or the Uniform Rules for the Trial Courts that requires that a transcript of a hearing held pursuant General Municipal Law § 50-h bear any particular caption or index number, or the name of an assigned judge.

Rahman v. Desch, NY Slip Op 01247 (2d Dep't March 5, 2025)

Here is the decision.

Amended pleadings.

When an amended complaint has been served, it supersedes the original complaint and becomes the only complaint in the case.

Qualified Impressions, LLC v. Pessa, NY Slip Op 01246 (2d Dep't March 5, 2025) 

Here is the decision.

General releases.

A general release is governed by principles of contract law. A valid release which is clear and unambiguous on its face and which is knowingly and voluntarily entered into will be enforced as a private agreement between parties, and bars an action on any cause of action arising prior to its execution. A general release bar will not only cover any and all claims between the releasor and releasees which had, by that time the release is executed, actually ripened into litigation, but to all such issues which might then have been adjudicated as a result of pre-existing controversies.

Like any contract, a release must be read as a whole in order to determine its purpose and intent, and extrinsic evidence of the parties' intent may be considered only if the agreement is ambiguous. A contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion. An ambiguity never arises out of what is not written, but only out of what was written so blindly and imperfectly that its meaning is doubtful.

Smith v. City of New York, NY Slip Op 01198 (1st Dep't March 4, 2025)

Here is the decision.

Appellate practice.

As a general rule, the Appellate Division does not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution, although it has the inherent jurisdiction to do so. 

Deutsche Natl. Bank Trust Co. v. Light, NY Slip Op 01078 (2d Dep't February 26, 2025)

Here is the decision.

Discovery sanctions.

Pursuant to CPLR 3126, a court may impose sanctions, including the striking of a pleading or preclusion of evidence, where a party refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed. Before a court invokes the drastic remedy of precluding a party from offering evidence at trial, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious. Here, the plaintiff failed to make a clear showing that the defendants willfully or contumaciously disobeyed a discovery order or acted in bad faith. Accordingly, the Supreme Court providently exercised its discretion by denying that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the defendants' answer.

Borchkhadze v. McMahon, NY Slip Op 01077 (2d Dep't February 26, 2025)

Here is the decision.

Contract law.

Conduct amounting to breach of contract may also constitute breach of fiduciary duty.

Dar v. SAJ Transp. Northeast., LLC, 01165 (1st Dep't February 27, 2025)

Here is the decision.

Easements.

An easement appurtenant occurs when the easement is created in writing, subscribed by the creator, and burdens the servient estate for the benefit of the dominant estate. Once created, the easement runs with the land and can only be extinguished by abandonment, conveyance, condemnation, or adverse possession.

Bikes by Olga, LLC v. People of the State of New York, NY Slip Op 01076 (2d Dep't February 26, 2025)

Here is the decision.

Motion practice.

A court of original jurisdiction may entertain a motion for leave to renew based on an alleged change in or clarification of the law, even after an appellate court has rendered a decision on the prior order.

435 Cent. Park W. Tenant Assn. v. Park Front Apts., LLC, NY Slip Op 01157 (1st Dep't February 27, 2025)

Here is the decision.