Medical malpractice

Supreme Court providently dismissed the medical malpractice claim pursuant to 22 NYCRR 202.27 since plaintiff had not submitted expert medical opinion evidence necessary to demonstrate that she had a meritorious cause of action. The same cannot be said for the negligence and negligent hiring, retention, and supervision claims since the merits of those claims, which were asserted in the complaint and the bills of particulars, can be gleaned from the record.

Dupree vs. New York-Presbyterian Columbia Univ. Irving Med. Ctr., NY Slip Op 06242 (1st Dep't October 27, 2026)

Here is the decision.

Judicial estoppel

It is well-settled New York law that a party who assumes a certain position in a legal proceeding may not thereafter assume a contrary position simply because his interests have changed.

Federal Natl. Mtge. Assn. vs. Hartsfield, NY Slip Op 06199 (1st Dep't October 22, 2026)

Here is the decision,.

Negligence claims

A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he was not at fault in the happening of the accident at issue. Although there may be more than one proximate cause of an accident and proximate cause is generally an issue to be determined by the trier of fact, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts.

Burton vs. Gurung, NY Slip Op 06088 (2d Dep't October 21, 2026)

Here is the decision.

Default judgments

Supreme Court appropriately denied petitioner's motion for a default judgment, as he moved for relief while the MTA's cross-motion to dismiss was still pending, pursuant to CPLR 7804[f].

Matter of Debnam vs. Metropolitan Transp. Auth., NY Slip Op 06196 (1st Dep't October 22, 2026)

Here is the decision.

Brokers' commissions

Where an agreement between a landlord and non-party tenant states that the plaintiff is the exclusive broker for the transaction and that the defendant will pay its commission, that representation, supported by documentary evidence, entitles the plaintiff to its commission as a matter of law. The lease renewal agreement between defendant landlord and non-party tenant states that plaintiff is the exclusive broker and that defendant will pay the broker fees relating to the transaction. Defendant's contention that there was no binding agreement or privity between itself and plaintiff is expressly contradicted by this renewal agreement. Plaintiff also submitted emails with defendant's representative showing plaintiff's involvement in the lease negotiations. The court properly rejected defendant's contention that its refusal to execute a subsequent brokerage agreement after the renewal agreement was signed negated its express agreement to pay the commission.

Colliers Intl. NY, LLC vs. City Hall Commons, LLC, NY Slip Op 06195 (1st Dep't October 22, 2026)

Here is the decision.

Expert opinions

An expert should be possessed of the requisite skill, training, education, knowledge, or experience from which it can be assumed that the information imparted or the opinion rendered is reliable.  The admissibility of expert testimony on a particular point is addressed to the discretion of the trial court.

Apuzzo vs. Central Cabinets, LLC, NY Slip Op 06082 (2d Dep't October 21, 2026)

Here is the decision.

Mandamus

Mandamus to compel may only be used to enforce a clear legal right where the public official has failed to perform a duty enjoined by law. Mandamus is appropriate to compel public officers to perform ministerial duties but not discretionary acts. A discretionary act involves the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result.

Matter of Troise vs. Marchiano, NY Slip Op 06079 (1st Dep't October 20, 2026)

Here is the decision.

Contracts

The construction and interpretation of an unambiguous written contract is an issue of law within the province of the court, as is the inquiry, in the first instance, of whether the writing is ambiguous. If the language is free from ambiguity, its meaning may be determined as a matter of law on the basis of the writing alone without resort to extrinsic evidence. An award of attorneys' fees for the costs incurred in prosecuting a claim for fees, so-called fees on fees, must be based upon a specific contractual provision or statute. Consequently, where a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed.

Davidoff vs. Hershfield, NY Slip Op 05931 (2d Dep't October 14, 2026)

Here is the decision.

Law of the case

The law of the case doctrine applies to legal determinations that were necessarily resolved on the merits in a prior decision, and to the same questions presented in the same case. It bars reconsideration of issues which were raised and determined against a party or which could have been raised on a prior appeal. An appellate court's resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court, and operates to foreclose re-examination of the question absent a showing of subsequent evidence or change of law.

Board of Mgrs. of Oceanview Condominium vs. Riccardi, NY Slip Op 05927 (2d Dep't October 14, 2026)

Here is the decision.

Appellate practice

Defendant K Mart's contention that defendant Transform KM did not breach a duty to the plaintiff is not properly before the Appellate Division, as that issue was not decided in the order appealed from.

Beale vs. K Mart Corp., NY Slip Op 05926 (2d Dep't October 14, 2026)

Here is the decision.

Unjust enrichment

Practice point:  Unjust enrichment lies as a quasi-contract claim and contemplates an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties. A valid contract governing the subject matter generally precludes recovery in quasi contract for events arising out of the same subject matter. 

Application:  Since there is a valid contract governing the subject matter, the complaint failed to state a cause of action to recover damages for unjust enrichment.

Alexim Holdings, LLC vs. Chang-Wardi, NY Slip Op 05924 (2d Dep't October 14, 2026)

Here is the decision.