Mandamus

Mandamus to compel may only be used to enforce a clear legal right where the public official has failed to perform a duty enjoined by law. Mandamus is appropriate to compel public officers to perform ministerial duties but not discretionary acts. A discretionary act involves the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result.

Matter of Troise vs. Marchiano, NY Slip Op 06079 (1st Dep't October 20, 2026)

Here is the decision.

Contracts

The construction and interpretation of an unambiguous written contract is an issue of law within the province of the court, as is the inquiry, in the first instance, of whether the writing is ambiguous. If the language is free from ambiguity, its meaning may be determined as a matter of law on the basis of the writing alone without resort to extrinsic evidence. An award of attorneys' fees for the costs incurred in prosecuting a claim for fees, so-called fees on fees, must be based upon a specific contractual provision or statute. Consequently, where 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.

Davidoff vs. Hershfield, NY Slip Op 05931 (2d Dep't October 14, 2026)

Here is the decision.

Law of the case

The law of the case doctrine applies to legal determinations that were necessarily resolved on the merits in a prior decision, and to the same questions presented in the same case. It bars reconsideration of issues which were raised and determined against a party or which could have been raised on a prior appeal. 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, and operates to foreclose re-examination of the question absent a showing of subsequent evidence or change of law.

Board of Mgrs. of Oceanview Condominium vs. Riccardi, NY Slip Op 05927 (2d Dep't October 14, 2026)

Here is the decision.

Appellate practice

Defendant K Mart's contention that defendant Transform KM did not breach a duty to the plaintiff is not properly before the Appellate Division, as that issue was not decided in the order appealed from.

Beale vs. K Mart Corp., NY Slip Op 05926 (2d Dep't October 14, 2026)

Here is the decision.

Unjust enrichment

Practice point:  Unjust enrichment lies as a quasi-contract claim and contemplates an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties. A valid contract governing the subject matter generally precludes recovery in quasi contract for events arising out of the same subject matter. 

Application:  Since there is a valid contract governing the subject matter, the complaint failed to state a cause of action to recover damages for unjust enrichment.

Alexim Holdings, LLC vs. Chang-Wardi, NY Slip Op 05924 (2d Dep't October 14, 2026)

Here is the decision.

A receptionist's accepting service

Practice point:  A receptionist may accept service on behalf of a party if granted authority to do so.

Application:  The individual defendant asserted in his affidavit that neither his receptionist nor the building's receptionist was permitted to accept service. However, this statement contradicts the process server's affidavits of service. Thus, he has not conclusively established that his receptionist or the front desk receptionist was not permitted to accept service. 

City of New York vs. Heritage Health & Hous., Inc., NY Slip Op 05998 (1st Dep't October 15, 2026)

Here is the decision.

Time to serve summons and complaint

Practice point:  Generally, service of a summons and complaint must be made within 120 days after the commencement of the action. 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, so 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, 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.

Application:  The Supreme Court providently exercised its discretion in granting the plaintiff's motion in the interest of justice, and properly determined that dismissal of complaint insofar as asserted against the defendant pursuant to CPLR 306-b and 3211(a)(8) on the ground of the plaintiff's failure to serve the defendant with the summons and complaint was not warranted. The plaintiff demonstrated that the action was timely commenced, that service was timely attempted and was believed by the plaintiff to have been made within 120 days after the commencement of the action, but was subsequently found to be defective, and that the extension of time would not prejudice the defendant. Additionally, the plaintiff demonstrated a potentially meritorious cause of action.

Deutsche Bank Natl. Trust Co. vs. Hall, NY Slip Op 05932 (2d Dep't October 14, 2026)

Here is the decision.

Contract law

Practice point:  When a party repudiates contractual duties prior to the time designated for performance and before all of the consideration has been fulfilled, the repudiation entitles the non-repudiating party to claim damages for total breach.  

Application:  The record establishes that defendants repudiated the contract by issuing a change order requesting additional payments followed by a threat to not return to the job unless plaintiffs agreed to pay the initial amount demanded, which threat was fulfilled when they abandoned the project. Defendants' largely conclusory allegations of plaintiffs' delays fail to raise material issues of fact sufficient to preclude a grant of summary judgment.

Ho vs. Star Contrs., Inc., NY Slip Op 05908 (1st Dep't October 13, 2026)

Here is the decision.

Defaults

Practice point:  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." The language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory. In order to establish sufficient cause, the plaintiff must proffer a reasonable excuse for the delay in timely moving for a default judgment and demonstrate that the cause of action is potentially meritorious.

Application:  Initially, contrary to the Supreme Court's determination, it was not precluded from considering the defendant's cross-motion pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against her as abandoned pursuant to the doctrine of law of the case. The order dated January 3, 2019, did not resolve on the merits whether the plaintiff abandoned the action pursuant to CPLR 3215(c). Further, the plaintiff failed to proffer a reasonable excuse for its lengthy delay in seeking a default judgment. The plaintiff's conclusory and unsubstantiated assertions that periods of delay were attributable to "loss mitigation discussions with [the] Borrower," compliance with a then newly-issued administrative order, and a change in counsel were insufficient to constitute a reasonable excuse. Since the plaintiff failed to set forth a reasonable excuse, the Appellate Division need not determine whether it asserted a potentially meritorious cause of action.

Deutsche Bank Natl. Trust Co. vs. Faies, NY Slip Op 05767 (2d Dep't October 7, 2026)

Here is the decision.

Statute of limitations as a defense

Practice point:  The doctrine of equitable estoppel applies where it would be unjust to allow a defendant to assert a statute of limitations defense. Thus, the defense of statute of limitations may be precluded where it is the defendant's affirmative wrongdoing that produced the long delay between the accrual of the cause of action and the commencement of the legal proceeding.

Application:  The defendants' admissions in their moving papers, together with the plaintiff's submissions in opposition to the motion, demonstrated that the plaintiff's delay in the commencement of this action was the result of the defendants' misconduct during the limitations period, and, therefore, that equitable estoppel is appropriate as a matter of law. The Supreme Court properly denied that branch of the defendants' motion which was, in effect, for summary judgment dismissing the complaint insofar as asserted against them as time-barred.

Bank of Am., N.A. vs. Russell, NY Slip Op 05759 (2d Dep't October 7, 2026)

Here is the decision.

Court holiday