Recusal

The assigned Justice was not a party to and had not been an attorney in this proceeding, and petitioner does not contend that the Justice had an interest in the proceeding or was related to the parties.  It is of no consequence that the Justice was represented by the Office of the Attorney General in unrelated litigation before the Appellate Division. In the absence of any statutorily mandated disqualification and any legitimate suggestion of bias or impartiality, the assigned Justice's decision not to recuse was appropriate.

Matter of DuBose v. City of New York, NY Slip Op 02449 (1st Dep't April 23, 2026)

Here is the decision.

Appellate practice

Before filing the notice of appeal, the appellant failed to appear in this action and did not oppose either the motion for a default judgment and an order of reference or the motion for an order confirming the Referee's report and granting a final judgment of foreclosure and sale. Accordingly, the appellant is not aggrieved by Supreme Court's grant of plaintiff's motions, and may not appeal from the resulting orders. The Appellate Division need not consider the appellant's arguments for affirmative relief.

Deutsche Bank Natl. Trust Co. v. Adekola, NY Slip Op 02448 (1st Dep't April 23, 2026)

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Declaratory judgments

Pursuant to CPLR 3001, "[t]he supreme court may render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy." The demand for relief in the complaint must specify the rights and other legal relations on which the declaration is requested, pursuant to CPLR 3017[b]. On a motion to dismiss the complaint, the issue is whether a cause of action for declaratory relief has been stated, not whether the plaintiff is entitled to a favorable declaration.

Cox v. First Citizens Bancshares, Inc., NY Slip Op 02388 (2d Dep't April 22, 2026)

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Contract law

Choice of law provisions typically apply only to substantive issues. In the absence of an express intention that a specific statute of limitations is to apply to the dispute, a choice of law provision cannot be read to encompass the limitations period.

Cincinnati Terrace Member LLC v. Tartar Krinsky & Drogin LLC, NY Slip Op 02369 (1st Dep't April 21, 2026)

Here is the decision.

Summary judgment motions

An affidavit submitted in opposition to the motion that merely raises what appear to be feigned issues of fact designed to avoid the consequences of earlier deposition testimony is insufficient to defeat summary judgment.

Brener v. Queens Blvd. Extended Care Facility Corp., NY Slip Op 02240 (2d Dep't April 15, 2026)

Here is the decision.

Appellate practice

Supreme Court effectively granted plaintiff's motion for leave to reargue when it considered the merits of the motion. Therefore, it is reviewable on appeal.

Feifei Gu v. Henry, NY Slip Op 02332 (1st Dep't April 16, 2026)

Here is the decision.

Motions to dismiss

Bare legal conclusions with no factual specificity in the complaint are insufficient to survive a motion to dismiss.

Berl v. CNH Operating, LCC, NY Slip Op 02238 (2d Dep't April 15, 2026)

Here is the decision.

Discovery disputes

The supervision of discovery and the setting of reasonable terms and conditions for disclosure are matters within the sound discretion of the trial court, as is the determination whether to strike a pleading and the nature and degree of any sanction to be imposed.  The striking of a party's pleading is a drastic remedy that is warranted only on a clear showing of a willful and contumacious failure to comply with discovery demands.

American Tr. Ins. Co. v. Hackensack Surgery Ctr., LLC, NY Slip Op 02235 (2d Dep't April 15, 2026)

Here is the decision.

Dismissal on the ground of documentary evidence

Plaintiff seeks to hold defendant liable for allegedly fraudulently inducing it to purchase real property. At the closing, defendant executed a certification concerning six apartments in the property, swearing that "no rent has ever been paid by the occupants" of the apartments, and alleging that the occupants of the apartments "are not tenants." However, schedule 8.1(k) in the closing binder set forth the "actual rents billed by [defendant] to the tenants of the premises."

The complaint is dismissed, pursuant to CPLR 3211[a][1], as the documentary evidence conclusively refutes the cause of action. The parties' purchase and sale agreement contained a merger clause, which incorporated the terms of schedule 8.1(k) into the agreement. Further, plaintiff agreed to purchase the property "as is" and "where is." These terms in the parties' agreement bar plaintiff's claim arising out of reliance on the purported misrepresentations.

ABJ 105, LLC v. Martinez, NY Slip Op 02327 (1st Dep't April 16, 2026)

Here is the decision.

Dismissal as time-barred

Pursuant to CPLR 3211(a)(5), a moving defendant must establish, prima facie, that the time within which to commence an action has expired. On this threshold showing, the burden shifts to the party opposing the motion to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether the action was actually commenced within the limitations period.

Parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations. An agreement which modifies the limitations period by specifying a shorter, but reasonable, period within which to commence an action is enforceable provided it is in writing.

Extech Bldg. Materials, Inc. v. J Cos., LLC, NY Slip Op 01770 (2d Dep't March 25, 2026)

Here is the decision.

Employment law

Under the common-law doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by employees acting within the scope of their employment. The employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment. An employer is not liable for assaults or other criminal acts committed by an employee under the theory of respondeat superior where those acts are not in furtherance of the business or within the scope of the employment.

Doe v. Yeshiva of Brooklyn, NY Slip Op 01769 (2d Dep't March 25, 2026)

Here is the decision.