Failure to oppose a motion

A party seeking to vacate an order entered upon a default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion. The court may accept a detailed and credible explanation of law office failure as a reasonable excuse in support of the motion to vacate.

Ackerson Bldrs., LLC v. Corbett, NY Slip Op 00111 (2d Dep't January 14, 2026)

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Premises iiability

A landowner owes a duty of care to maintain its property in a reasonably safe condition. The duty is premised on the landowner's exercise of control over the property, as the person in possession and control of  a property is best able to identify and prevent any harm to others. A landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property. However, an out-of-possession landlord may be liable for injuries occurring on the premises if it has retained control of the premises, is contractually obligated to perform maintenance and repairs, or is obligated by statute to perform such maintenance and repairs.

Yongxi Li v. Pei Xing Huang, NY Slip Op 07432 (2d Dep't December 31, 2025)

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Appellate practice

The factual argument that plaintiffs pursue on appeal is not the same one that they made before Supreme Court, and so the argument is not properly before the Appellate Division.

Continuum Energy Tech., LLC v. Iron Oak, Inc., NY Slip Op 00053 (1st Dep't January 8, 2026)

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Motions for summary judgment

Since the defendant failed to eliminate all triable issues of fact, the Supreme Court properly denied his motion, regardless of the sufficiency of the plaintiff's opposition papers.

Delos-Santos v. Kaisman, NY Slip Op 07377 (2d Dep't December 31, 2025)

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Contract law

Extrinsic evidence may be considered in assessing the implied covenant claim, even if not relevant to the breach of contract claim.

AMF Trust Ventures, LLC v. 180 Group, LLC, NY Slip Op 00073 (1st Dep't January 8, 2025)

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Failure to answer

A defendant''s submission of an affirmation, instead of an affidavit, to present his reasonable excuse for not answering the complaint, was a mere technical procedural irregularity which can be disregarded, pursuant to CPLR 2001, 2101[f]. Plaintiffs waived any objection to the form of the submission by failing to return it within 15 days of receipt, pursuant to CPLR 2101[f]. To the extent that the defendant was required to cure the defect, he did so by ultimately serving an affidavit, which the court had discretion to accept pursuant to CPLR 2001.

S.G. v. New York City Health & Hosps. Corp., NY Slip Op 00068 (1st Dep't January 8, 2026)

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Law of the case

The doctrine of the law of the case seeks to prevent litigation of issues of law that have already been determined at an earlier stage of the proceeding.  The doctrine applies only to legal determinations that were necessarily resolved on the merits in a prior decision and to the same questions presented in the same case.

Cotto v. Robinson, NY Slip Op 07374 (2d Dep't December 31, 2025)

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Amending a pleading

Plaintiffs were permitted to amend their complaint as of right, pursuant to CPLR 3025[a]. As such, Supreme Court correctly applied defendant's pending motion to dismiss to the amended complaint because the original complaint was superseded. The motion for leave to amend to remove two lines from the amended complaint that were included in error, filed within a week of the amended pleading, was providently granted, pursuant to CPLR 3025[b]. 

Daniel Szalkiewicz & Assoc., P.C. v. Liu, NY Slip Op 07346 (1st Dep't December 30, 2025)

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Motions to dismiss

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory. Claims consisting of bare legal conclusions with no factual specificity are insufficient to survive the motion. Dismissal is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery.

Byington v. North Sea Assoc., LLC, NY Slip Op 07372 (2d Dep't December 31, 2025)

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Defamation

The elements of a cause of action for defamation are (a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se. A statement constitutes defamation per se if it tends to injure the plaintiff's trade, business, or profession.

Only statements alleging facts can be the subject of a defamation action because only facts are capable of being proven false, and falsity is a necessary element of defamation. In distinguishing between statements of fact and those of pure opinion, it is necessary to consider the writing as a whole, including its tone and apparent purpose, as well as the overall context of the publication, to determine whether the reasonable reader would have believed that the challenged statements were conveying facts about the plaintiff.

An expression of pure opinion is not actionable no matter how vituperative or unreasonable it may be. Where a statement of pure opinion implies that it is based upon undisclosed facts which justify the opinion, it is actionable because a reasonable listener or reader would infer that the speaker or writer knows certain facts, unknown to the audience, which support the opinion and are detrimental to the person toward whom the communication is directed. Where, however, the opinion recites the facts upon which it is based without implying the existence of additional, undisclosed facts, that statement is not actionable.

Biagini Realty v. Brightman, NY Slip Op 07371 (2d Dep't December 31, 2025)

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Adding a defendant

The court may consider a motion to add a defendant even though the proposed additional defendant had not been served with a copy of the motion.

Acevedo v. 439 Realty Corp., NY Slip Op 07370 (2d Dep't December 31, 2025)

Here is the decision.