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.

Motion Practice.

A plaintiff may not raise a claim for the first time in its opposition to the defendant's motion to dismiss.

Myers v. Doherty, NY Slip Op 06550 (1st Dep't November 25, 2025)

Here is the decision.

Settling an Ordet.

22 NYCRR 202.48(c)(1) provides that "[w]hen settlement of an order or judgment is directed by the court, a copy of the proposed order or judgment with notice of settlement . . . shall be served on all parties." Further, 22 NYCRR 202.48(a) provides that "[p]roposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted." The failure to "submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown," pursuant to § 202.48(b). However, a court should not deem an action or judgment abandoned where the result would not bring the repose to court proceedings that 22 NYCRR 202.48 was designed to effectuate and would waste judicial resources.

Here, the record does not show that the plaintiff settled the order in accordance with the requirements of 22 NYCRR 202.48(a). Nevertheless, the Supreme Court providently exercised its discretion in denying vacatur of the order of reference and the order and judgment of foreclosure and sale pursuant to 22 NYCRR 202.48(b). The defendant was not prejudiced by the plaintiff's failure to strictly comply with the requirements of 22 NYCRR 202.48. Moreover, the denial of vacatur pursuant to 22 NYCRR 202.48(b) brought repose to the proceedings and preserved judicial resources.

Bank of N.Y. Mellon Trust Co., N.A. v. Ahmed, NY Slip Op 06588 (2d Dep't November 26, 2025)

Here is the decision.

Escrow.

The purpose of an escrow is to assure the carrying out of an obligation already contracted for. If an escrow is established, the instrument in escrow becomes irrevocable.

United Legwear Co., LLC v. All in the Cards, Inc., NY Slip Op 06557 (1st Dep't November 25, 2025)

Here is the decision.

Court Holiday.

Storm-in-Progress Rule.

Plaintiff is a tenant of an apartment building owned and managed by defendants. She alleges that she was injured when she slipped and fell on ice on the walkway in front of her building. On the day of the accident, it had been raining and snowing before plaintiff left the building, and the building superintendent had removed sleet and snow from the area around the building entrance, placing salt on the ground near the entrance. The superintendent testified that he was salting the sidewalk in front of the building when he learned of plaintiff's accident.

Defendants established prima facie entitlement to summary judgment by submitting climatological data and a meteorologist's affidavit showing that there was a winter storm in progress at the time of the accident. Defendants' evidence was corroborated by the deposition testimony of the superintendent, who stated that sleet was falling around the time that plaintiff fell.

In opposition, plaintiff failed to raise a triable issue of fact. Her conclusory deposition testimony that it was not snowing at the time of of the accident does not raise a triable issue. Neither does laintiff's speculation that defendants' snow removal was inadequate  Plaintiff presented no evidence that the superintendent created or exacerbated the icy condition of the walkway through his efforts to clear the snow and ice from the front of the building.

Reversed and dismissed.

Patterson v. 786 E 182, LLC, NY Slip Op 06392 (1st Dep't November 20m 2025)

Here is the decision.

Motions to Dismiss.

In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court should liberally construe the complaint and accept as true the facts alleged in the complaint and any submissions in opposition to the motion to dismiss.  Evidentiary material submitted by the plaintiff in opposition to dismissal may be considered to remedy defects in the complaint. If the court considers evidentiary material, the criterion becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one.  

Berman v. Sosman, NY Slip Op 06304 (2d Dep't November 19, 2025)

Here is the decision.

Discovery Sanctions.

Pursuant to CPLR 3126(1), the imposition of sanctions against the party from whom discovery is sought requires a pattern of deliberate, contumacious delay, as opposed to aberrant behavior where there otherwise is substantial compliance with discovery demands or a failure to comply based on a mistaken interpretation of what was required to be produced.

Sherman v. Zampella, NY Slip Op 06397 (1st Dep't November 20, 2025)

Here is the decision.

Fraud Claims.

The elements of a cause of action for fraud are a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff, and damages. A fraud claim must be pleaded with particularity, pursuant to CPLR 3016(b). The purpose of CPLR 3016(b) is to inform a defendant of the complained of incidents, and the statute should not be so strictly interpreted as to prevent an otherwise valid cause of action in situations where it may be impossible to state in detail the circumstances constituting a fraud. CPLR 3016(b) is satisfied when the facts permit a reasonable inference of the alleged misconduct.

American Premium Realty Group, LLC v. 37-19 Realty, Inc., NY Slip Op 06301 (2d Dep't November 19, 2025)

Here is the decision.