Duty of care.

Whether there is a duty of care is a question of law. Absent a duty, there is no breach and, without breach, there is no liability for negligence. Courts have imposed a duty of care where there are special circumstances in which there is sufficient authority and ability to control the conduct of third-persons. However, a parent is not liable for the tortious or intentional conduct of an emancipated child.

Ballan v. Greenberg, NY Slip Op 04860 (2d Dep't September 10, 2025)

Here is the decision.

Lack of personal jurisdiction.

A defendant waives the defense of lack of personal jurisdiction by appearing in an action, either formally or informally, without raising the defense in an answer or pre-answer motion to dismiss. A defendant may appear informally by actively litigating the action before the court. When a defendant participates in a lawsuit on the merits, he indicates an intention to submit to the court's jurisdiction over the action, and by appearing informally in this manner, the defendant confers in personam jurisdiction on the court. Here, the defendants waived the defense of lack of personal jurisdiction by opposing a prior motion by the plaintiff for leave to enter a default judgment against them on the ground that the plaintiff failed to establish the merits of its cause of action against them and by thereafter opposing another prior motion by the plaintiff and filing a cross-motion for affirmative relief, all without asserting an objection to jurisdiction.

BAC Home Loans Servicing, L.P. v. Davis, NY Slip Op 04859 (2d Dep't September 10, 2025)

Here is the decision.

Account stated.

The plaintiff pleads an account stated with evidence that it generated statements for the defendant in the regular course of business, that it mailed those statements on a monthly basis, that the defendant accepted and retained these statements, without objection, for a reasonable period of time, and that the defendant made partial payments thereon.

American Express Natl. Bank v. Zelkovitz, NY Slip Op 04857 (2d Dep't September 10, 2025)

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Appellate practice.

The Appellate Division may not make findings based on matters outside the record.

Olympic Galleria, Co., Inc. v. Sitt, NY Slip Op 04965 (1st Dep't September 11, 2025)

Here is the decision.

Summary judgment motions.

A plaintiff cannot raise a new theory of liability in opposition to a motion for summary judgment.

Alexandre v Shih T. Wang, NY Slip Op 04855 (2d Dep't September 10, 2025)

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Preliminary injunctions.

Proof establishing entitlement to a preliminary injunction must be by affidavit or other competent proof, with evidentiary detail. The element of likelihood of success on the merits may be sufficiently established even where the facts are in dispute and the evidence is inconclusive.

New York Mar. & Gen. Ins. Co. v. Millennia Assur., Inc., NY Slip Op 04964 (1st Dep't September 11, 2025)

Here is the decision.

Piercing the corporate veil.

Allegations that corporate funds were diverted to make it judgment-proof or that the corporation was dissolved without appropriate reserves are sufficient to satisfy the pleading requirement to pierce the corporate veil on an alter-ego theory. The law does not require that the parent company's actions be fraudulent, only that they result in a wrong or an inequity. 

Rich v. J.A. Madison, LLC, NY Slip Op 04818 (1st Dep't August 28, 2025)

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Law of the case.

The doctrine of the law of the case applies to legal determinations that were necessarily resolved on the merits in the prior decision, and to the same questions presented in the same case, and where the parties had a full and fair opportunity to litigate the initial determination. When the court executes an order which is jurisdictionally valid, that order becomes the law of the case which may be undone only by appellate review and reversal, or by application to reargue or renew or to vacate made to the ordering judge.

Lloyd v. Lloyd, NY Slip Op 04776 (2d Dep't August 27, 2025)

Here is the decision.

Appellate practice.

As the plaintiff's contentions relate to motions previously decided in two orders, and he did not file a notice of appeal from either of those orders, his contentions are not properly before the Appellate Division, pursuant to CPLR 5515.

Kelsey v. Anonymous #2, NY Slip Op 04773 (2d Dep't August 27, 2025)

Here is the decision.

Contract law.

Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party. However, there are three exceptions to the general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely. Where the pleadings do not allege facts which establish the applicability of an exception, a defendant is not required to affirmatively demonstrate that the exceptions do not apply in order to establish its prima facie entitlement to judgment as a matter of law.

Kapoian-Trapani v. City of New York, NY Slip Op 04772 (2d Dep't August 27, 2025)

Here is the decision.