Leave to amend

The Supreme Court providently exercised its discretion in denying the plaintiffs' cross-motions for leave to amend the complaint, as the action had already been certified as ready for trial, approximately 2½ years had passed since the plaintiffs filed the complaint, the new causes of action were based on facts that the plaintiffs had been aware of since the commencement of the action, and the plaintiffs did not provide any excuse for their delay in seeking leave to amend the complaint to add those causes of action.

Dwyer v. Montefiore New Rochelle Hospital, NY Slip Op 02825 (2d Dep't May 6, 2026)

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Dismissal based on documentary evidence

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the moving party's documentary evidence utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law. In order to be considered documentary, the evidence must be unambiguous and of undisputed authenticity. Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and other papers, the contents of which are essentially undeniable, may qualify as documentary evidence.

Dimas Tower, Inc. v. North Shore Towers Apts., Inc., NY Slip Op 02822 (2d Dep't May 6, 2026)

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Appellate practice

No appeal lies as of right from an order which did not decide a motion made upon notice, including an order entered sua sponte, pursuant to CPLR 5701[a][2].

Citizens Bank, N.A. v. Abrams, NY Slip Op 02819 (2d Dep't May 6, 2026)

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1945

Summary judgment

Defendant's assertion that he is entitled to summary judgment because plaintiff did not serve an expert affidavit by the court-ordered deadline constitutes an effort to point out gaps in the plaintiff's proof. Gaps in plaintiff's proof, however, cannot serve as a basis to grant defendant's motion, on which, as the moving party, he bears the burden.

Allen v. Thompson, NY Slip Op 02771 (1st Dep't May 5, 2026)

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Discovery

The reasonable production expenses of a non-party witness are defrayed by the party seeking discovery, pursuant to CPLR 3111, 3122[d].

Matter of Peerenboom v. Marvel Entertainment, LLC, 2026 N.Y. App. Div. LEXIS 2903, 1st Dep't April 30, 2026

Employment law

An employer may be vicariously liable for the torts of its employee acting within the scope of employment, but a claim against the employer does not necessarily preclude a separate claim against the employee. It is immaterial to an agent's liability that the agent's tortious conduct may, additionally, subject the principal to liability. 

Castellazzo v. David's New Beginnings, LLC, 2026 N.Y. App. Div. LEXIS 2818, 2d Dep't April 29, 2026

Injunctive relief

In order to obtain a preliminary injunction, the movant must establish: (1) a likelihood of success on the merits; (2) irreparable injury absent the injunction, and (3) a balancing of the equities in the movant's favor. The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court. Absent unusual or compelling circumstances, appellate courts are reluctant to disturb that determination.

Beckett v. Estate of Thomas Beckett, 2026 N.Y. App. Div. LEXIS 2796, 2d Dep't April 29, 2026

Orders of preclusion

A conditional order of preclusion requires a party to provide specific discovery by a date certain, or incur sanctions. If the party fails to produce the discovery on time, the conditional order becomes absolute.

Bank of Am., N.A. v. Sarwar, NY Slip Op 02621 (2d Dep't April 29, 2026)

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Jurisdictional questions

Pursuant to CPLR 5015(a)(4), "[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person . . . upon the ground of . . . lack of jurisdiction to render the judgment or order." Where a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), and seeks a discretionary vacatur pursuant to CPLR 5015(a)(1), the court must resolve the jurisdictional question before determining whether to grant a discretionary vacatur of the default.

Atlantica, LLC v. Hunte, NY Slip Op 02619 (2d Dep't April 29, 2026)

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Failure to oppose a motion

In order to vacate a default in opposing a motion pursuant to CPLR 5015(a)(1), the moving party is required to demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion. The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court. Ignorance of the law, failure to retain an attorney, and confusion about the date of a conference do not constitute reasonable excuses.

166 N. 7 St., LLC v. Sung Kyu Khim, NY Slip Op 02617 (2d Dep't April 29, 2026)

Here is the decision.