Motions to dismiss

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory. If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one. Affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that the plaintiff has no cause of action.

A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law.

Macru v. Shorefront Operating, LLC, NY Slip Op 07293 (2d Dep't December 24, 2025)

Here is the decision.

Storm-in-progress rule

Under the storm-in-progress rule, a property owner or a snow removal contractor will not be held liable for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.

Walker v. Jonis Holdings II, LLC, NY Slip Op 07038 (2d Dep't December 17, 2025)

Here is the decision.

Vacatur

In this breach of contract action, the parties dispute whether plaintiff properly served defendant with the summons and complaint. At the commencement of the action in November 2022, plaintiff served the summons and complaint upon the Secretary of State and mailed the papers to defendant's business address. Defendant failed to appear in the action and the court granted plaintiff's motion for a default judgment. On October 30, 2023, after an inquest, judgment was entered against defendant. One year later, defendant moved to vacate the default judgment and for leave to interpose a late answer with affirmative defenses and counterclaims. Supreme Court denied the motion.

Defendant failed to show entitlement to vacatur under CPLR 5015(a)(4). The record includes evidence that plaintiff properly served the summons and complaint on the Secretary of State pursuant to Business Corporation Law § 306, which, itself, constituted service on defendant. Defendant also failed to show an entitlement to vacatur based on plaintiff's purported failure to satisfy the additional mailing requirement of CPLR 3215 (g)(4)(ii). Plaintiff submitted proof that it executed additional service of the summons on the corporation by first class mail at the corporation's last known address, accompanied by a notice that service was effectuated on the Secretary of State pursuant to Business Corporation Law § 306.

The affidavit by defendant's president in support of the motion to vacate included only vague and conclusory allegations of defendant's purported defense to plaintiff's claims, and thus did not make the requisite prima facie showing of a meritorious defense under CPLR 3215 (g)(4)(ii), CPLR 317, or CPLR 5015(a)(1). 

Affirmed.

Rubenstein Pub. Relations, Inc. v. Fleet Fin. Group, Inc., NY Slip Op 07235 (1st Dep't December 23, 2025)

Here is the decision.

Dismissal as abandoned

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." The statute is strictly construed, as the language is not discretionary, but mandatory. However, a court has the discretion to excuse a failure to timely seek a default if there is sufficient cause why the complaint should not be dismissed. The Appellate Division has interpreted this language as requiring both a reasonable excuse for the delay in timely moving for a default judgment, plus a demonstration that the cause of action is potentially meritorious. Although the determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court, reversal is warranted if that discretion is improvidently exercised

Wells Fargo Bank, N.A. v. Wercberger, NY Slip Op 07040 (2d Dep't December 17, 2025)

Here is the decision.

Merry Christmas 1943

Christmas Eve 1964

Expert medical testimony

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

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

Here is the decision.

Leave to renew

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

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

Here is the decision.

Extending time

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

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

Here is the decision.

Estates, powers, and trusts law

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

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

Here is the decision.

Setting aside a jury verdict

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

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

Here is the decision.