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.

Quantum Meruit.

The elements of a cause of action sounding in quantum meruit are: (1) the performance of the services in good faith; (2) the acceptance of the services by the person to whom they are rendered; (3) an expectation of compensation therefor; and (4) the reasonable value of the services.  The question of whether a party had a reasonable expectation of compensation for services rendered is a matter for the trier of fact to determine based on the evidence before it.

239 E.18th Owners Corp. v. Wade, NY Slip Op 06384 (1st Dep't November 20, 2025)

Here is the decision.

Discovery.

CPLR 3101(a)(4), concerning disclosure from non-parties to an action, provides for full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by anyone, upon notice stating the circumstances or reasons such disclosure is sought. The party who served the subpoena has an initial burden to show that the non-party was apprised of the circumstances or reasons that discovery is sought. If that is satisfied, it is then the burden of the person moving to quash a subpoena to establish either that the requested disclosure 'is irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious. Should the movant meet this burden, the subpoenaing party must then establish that the discovery sought is material and necessary to the prosecution or defense of the action.

Dorman v. Luva of NY, LLC, NY Slip Op 06155 (2d Dep't November 12, 2025)

Here is the decision.

Appellate Practice.

The denial of a motion for reargument is not appealable.

U.S. Bank Trust, N.A. v. Santiago, NY Slip Op 06300 (1st Dep''t November 18, 2025)

Here is the decision.