Summary judgment motions

There is no merit to the defendants' contention that the motion should have been denied as premature because discovery had yet to take place, pursuant to CPLR 3212[f]). It is well-settled that the mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion. Moreover, the defendants failed to demonstrate that the relevant facts were in the plaintiff's exclusive control.

Bank of Am., N.A. vs. Discobath Prods., Inc., NY Slip Op 05377 (2d Dep't September 23, 2026)

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Appellate practice

Plaintiff abandoned his appeal of the dismissal of the cause of action seeking inspection of the condominium board's records. Supreme Court dismissed this cause of action for plaintiff's lack of standing, and plaintiff's argument on appeal with respect to the issue of standing was limited to the two derivative causes of action.

Bent vs. Cirone, NY Slip Op 05456 (1st Dep't September 24, 2026)

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Contract law

Where a seller seeks to hold a purchaser in breach of contract, the seller must establish that it was ready, willing, and able to perform on the time-of-the-essence closing date, and that the purchaser failed to demonstrate a lawful excuse for its failure to close. In light of the plaintiff's contractual obligations at closing, its bare assertion that it tendered the deed in the defendants' absence was insufficient to establish, prima facie, that the plaintiff was ready, willing, and able to perform on the adjourned closing date. 

1539 Realty, LLC vs. Murphy, NY Slip Op 05376 (2d Dep't September 23, 2026)

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Contract law

Contract interpretation is a question of law subject to de novo review. A complete, clear, and unambiguous agreement must be enforced according to its plain terms. Courts seek the parties' reasonable expectations, giving words their fair meaning in context.

Aurelius Capital Master Ltd. vs. Hertz Intl. Ltd., NY Slip Op 05369 (1st Dep't September 22, 2026)

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Venue

Pursuant to CPLR 503(a), "[e]xcept where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced; [or] the county in which a substantial part of the events or omissions giving rise to the claim occurred." CPLR 510(3) provides that, upon motion, the court may change the venue of an action where "the convenience of material witnesses and the ends of justice will be promoted by the change." A party moving to change venue pursuant to CPLR 510(3) must provide information about the prospective witnesses, including, but not limited to, their names and addresses, disclose the facts about which the proposed witnesses will testify at the trial, represent that the prospective witnesses are willing to testify, and state that the witnesses would be inconvenienced if the venue is not changed. The situs of a plaintiff's injury may provide a basis for a discretionary change of venue in that, things being equal, a transitory action should be tried in the county where the cause of action arose.

Bellavia vs. Hoppenstein, NY Slip Op 05267 (2d Dep't September 16, 2026)

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Premises liability

Under the storm in progress rule, a property owner will not be held liable in negligence for a plaintiff's injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter.

Batista vs. Allerton Ave. Estates, LLC, NY Slip Op 05265 (2d Dep't September 16, 2026)

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Spoliation

Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned. The party seeking sanctions for spoliation must show that the party having control over the evidence was obliged to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense.

The Supreme Court has broad discretion in determining what, if any, sanction is imposed for spoliation of evidence, but the Appellate Division may substitute its own discretion for that of the trial court. The nature and severity of the sanction depends upon a number of factors, including, but not limited to, the knowledge and intent of the spoliator, proof of an explanation for the loss of the evidence, and the degree of prejudice to the opposing party.

Alvarez vs. 100-10 67 Rd. Condominium, NY Slip Op 05261 (2d Dep't September 16, 2026)

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Contract law

The equitable remedy of specific performance is a discretionary remedy that provides an alternative to an award of damages as a means of enforcing a contract. The decision whether to grant or deny the remedy of specific performance lies within the discretion of the court. It should not be granted where it would cause unreasonable hardship or injustice.

90 Chicken Corp. v. 90 Jericho Realty Corp., NY Slip Op 05258 (2d Dep't September 16, 2026)

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Contract law

Lease provisions purporting to exempt a lessor from liability for its own negligence are void as against public policy. However, where sophisticated parties, negotiating at arm's length, have agreed to allocate between themselves the risk of liability to third parties, through insurance, the agreement is enforceable.

Hearns v. Blended Family, LLC, NY Slip Op 05367 (1st Dep't September 17, 2026)

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Appellate practice

In reviewing a determination made after a non-jury trial, the Appellate Division's power is as broad as that of the trial court. The Appellate Division may render the judgment it finds warranted by the facts, taking into account that, in a close case, the trial judge had the advantage of seeing the witnesses.

90 Chicken Corp. v. 90 Jericho Realty Corp., NY Slip Op 05258 (2d Dep't September 16, 2026)

Here is the decision.

Contract law

A stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation. A court should interpret the stipulation in accordance with its plain and ordinary meaning, and arrive at a construction that will give fair meaning to the contractual language so that the parties' reasonable expectations will be realized. A court may not write into a contract conditions the parties did not insert by adding or excising terms under the guise of construction, and it may not construe the language in such a way as would distort the contract's apparent meaning. In making the determination, the court should examine the entire contract and consider the relation of the parties and the circumstances under which the contract was executed.

Graudins v. Hunt, NY Slip Op 05168 (2d Dep't Septrember 2, 2026)

Here is the decision.