July 14, 2025

Motion practice.

Where the defendant fails to establish its prima facie entitlement to judgment as a matter of law, the motion court will not consider the sufficiency of the plaintiffs' opposition papers.

Acosta v. Shanahan Group, LLC, NY Slip Op 04077 (2d Dep't July 9, 2025)

Here is the decision.

July 13, 2025

Contract law.

The essential elements of a breach of contract cause of action are the existence of a contract, the plaintiff's performance under the contract, the defendant's breach of that contract, and resulting damages. In order to state a cause of action, the plaintiff's allegations must identify the provisions of the contract that were breached. Where the contract is before the court, its provisions establish the rights of the parties and prevail over conclusory allegations of the complaint.

7 Leaf Compounds, LLC v. Pearl Riv. Campus, LLC, NY Slip Op 04076 (2d Dep't July 9, 2025)

Here is the decision.

July 12, 2025

Leave to amend.

Leave to amend a pleading should be granted where the amendment is neither palpably insufficient nor patently devoid of merit and the delay in seeking amendment does not prejudice or surprise the opposing party. 

7 Leaf Compounds, LLC v. Pearl Riv. Campus, LLC, NY Slip Op 04076 (2d Dep't July 9, 2025)

Here is the decision.

July 11, 2025

Appellate practice.

A party who seeks to appeal a sua sponte order should first move to vacate the order in order to create a suitable appellate record and afford counsel the opportunity to be heard on the issues, pursuant to CPLR 5701[a][3].

Klein v. New York City Tr. Auth., NY Slip Op 04147 (1st Dep't July 10, 2025)

Here is the decision.

July 10, 2025

Estoppel.

Equitable estoppel precludes a defendant from using the statute of limitations as a defense where it is the defendant's affirmative wrongdoing which produced the long delay between the accrual of the cause of action and the institution of the legal proceeding. Invoking the doctrine of equitable estoppel requires a showing that the defendant's actions prevented timely commencement of the suit

Robinson v. Jamaica Hosp. Med. Ctr., NY Slip Op 04030 (2d Dep't July 2, 2025)

Here is the decision.

July 9, 2025

Restoring a case to the calendar.

Plaintiff's motion to restore the action to the active calendar is granted. The action was never formally dismissed, as no order was issued directing dismissal of the action under 22 NYCRR 202.27. Accordingly, restoring a case marked inactive is automatic, and plaintiff was not required to establish a reasonable excuse for failing to appear at the status conference.

Simon v. Bryski, NY Slip Op 04033 (2d Dep't July 2, 2025)

Here is the decision.

July 8, 2025

Foreclosure actions.

An action to foreclose a mortgage is subject to a six-year statute of limitations. When a mortgage is payable in installments, which is the typical practice, an acceleration of the entire amount due begins the running of the statute of limitation on the entire debt. One of the ways to accelerate a mortgage debt is through commencement of a foreclosure action in which the verified complaint includes an election to exercise the mortgagor's contractual right to accelerate under the terms of the note and mortgage. The fact of election should not be confused with the notice of the election. While the act evincing the noteholder's election must be sufficient to constitute notice to all third parties of such a choice, a borrower's lack of actual notice does not, as a matter of law, destroy the effect of the election. Put another way, the point at which a borrower has actual notice of an election to accelerate is not the operative event for purposes of determining when the statute of limitations begins to run. The dispositive question is whether the contractual election was effectively invoked.

Wilmington Sav. Fund Socy., FSB v. Avenue Basin Mgt., Inc., NY Slip Op 04039 (2d Dep't July 2, 2025)

Here is the decision.

July 7, 2025

Standing.

Only a trustee, as opposed to the trust, may file suit.

J. Carey Smith 2019 Irrevocable Trust v. 11 W. 12 Realty, LLC, NY Slip Op 04045 (1st Dep't July 3, 2025)

Here is the decision.

July 6, 2025

Motions to dismiss.

A motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, resolves all factual issues as a matter of law, and conclusively disposes of the claims at issue. In order to be credited, the evidence submitted in support of a CPLR 3211(a)(1) motion must be unambiguous, authentic, and undeniable.

Arkin, Simon & Simon Partnership v. Rockaway Crossing, LLC, NY Slip Op 03990 (2d Dep't July 2, 2025)

Here is the decision.

July 5, 2025

Arbitration.

The court will not intervene where there is an arbitration clause in which the parties agree to rules under which the arbitrator decides arbitrability.

Ghatak v. McKinsey & Co., NY Slip Op 04044 (1st Dep't July 3, 2025)

Here is the decision.