Contract law

Practice Point:  The essential elements of a cause of action to recover damages for breach of contract are (1) the existence of a contract, (2) the plaintiff's performance pursuant to the contract, (3) the defendant's breach of its contractual obligations, and (4) damages resulting from the breach. A contract is to be construed in accordance with the parties' intent, which is generally discerned from the four corners of the document itself. Consequently, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms. A written agreement or other written instrument which contains a provision to the effect that it cannot be changed orally, cannot be changed by an executory agreement unless it is in writing and signed by the party against whom enforcement of the change is sought or by its agent. Notwithstanding that, an alleged oral modification is enforceable if there is part performance that is unequivocally referable to the oral modification. In order to be unequivocally referable, conduct must be inconsistent with any other explanation,

Application:  In support of their motion for summary judgment, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging breach of contract against Titan by submitting evidence establishing, prima facie, that there had been no breach by Titan and that the plaintiffs were in default under the terms of the agreements by failing to repay the loans that matured in January 2020. In opposition, the plaintiffs failed to raise a triable issue of fact. Contrary to the plaintiffs' contention, the evidence did not raise a triable issue of fact as to whether Titan's acceptance of payments in June and July 2020 reflected a new oral contract.

White vs. Titan Capital ID, LLC, NY Slip Op 05826 (2d Dep't October 7, 2026) 

Here is the decision. 

Usury as a defense

Practice point:  Establishing that there was a loan is a necessary element of a defense sounding in usury. 

Application:  Defendants failed to establish that the underlying agreement was a loan, in failing to demonstrate, among other things, that the agreement had a finite term.

Kapitus Servicing, Inc. vs. Southern Source, Inc., NY Slip Op 05855 (1st Dep't October 8, 2026) 

 Here is the decision.

Fiduciary relationships

Practice point:  There is a fiduciary relationship between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation.

Application:  The parties' personal relationship alone does not give rise to a fiduciary relationship.

Goldberg vs. Torim, NY Slip Op 05721 (1st Dep't October 6, 2026)

Here is the decision.

Stipulations

Practice point:  A stipulation is binding on parties that have legal capacity to negotiate, freely negotiate their agreement, and either reduce their stipulation to a properly subscribed writing or enter the stipulation orally on the record in open court.

Application:  The plaintiff's own submissions raised issues of fact as to the legal capacity of the plaintiff's attorney to enter into a stipulation on behalf of the decedent's estate and to sell any interest the decedent's estate may have in the property at issue. The plaintiff's motion to enforce the terms of the stipulation and to appoint a referee to sell the property is denied.

Estate of Coba vs. Hernandez, NY Slip Op 05517 (2d Dep't September 30, 2026)

Here is the decision.

Sua sponte dismissal

Practice point:  A court's power to dismiss an action, sua sponte, is to be used sparingly and only when extraordinary circumstances warrant dismissal.

Application:  The plaintiff's failure to comply with the directive in the status conference order did not warrant dismissal of the complaint.

Deutsche Natl. Bank Trust Co. vs. Mohamed, NY Slip Op 05516 (2d Dep't September 30, 2026)

Here is the decision.

Contract law

Practice point:  A contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion. The threshold question of whether a contract is unambiguous and the subsequent construction and interpretation of an unambiguous contract are issues of law within the province of the motion court.

Application:  The Supreme Court properly determined that the relevant provisions of the agreement regarding the imposition of a Transfer Fee, when read in context, were clear and unambiguous, and established that the defendant was prohibited from imposing the fee on the plaintiff pursuant to the terms of the agreement.

Data Mtge., Inc. vs. Money Source, Inc., NY Slip Op 05514 (2d Dep't September 30, 2026)

Here is the decision.

Employment law

Practice point:  Actions alleging discrimination under State and City Human Rights Laws must be commenced within three years after the alleged unlawful discriminatory practice or act of discriminatory harassment. An employment discrimination claim accrues on the date that an adverse employment determination is made and communicated to the plaintiff.

Application:  On or about July 16, 2014, the defendant notified the plaintiff and the New York City Department of Citywide Administrative Services that after an investigation, the plaintiff failed to establish his entitlement to a disabled veteran's credit, pursuant to Civil Service Law § 85, thereby starting the running of the applicable statute of limitations. The plaintiff's written request seeking reconsideration of the defendant's decision to withdraw the plaintiff's disabled veteran's credit did not toll the statute of limitations, nor did it allow the plaintiff to circumvent the statute of limitations by demanding that the defendant change its determination and thereafter commencing an action when that demand was refused. The plaintiff commenced this action on March 15, 2019, almost five years after the defendant notified the plaintiff that he was ineligible for a disabled veteran's credit. 

Dismissed.

Bourke vs. City of New York, NY Slip Op 05513 (2d Dep't September 30, 2026)

Here is the decision.

Arbitration awards

Practice point:  CPLR 7511(e) mandates an automatic confirmation upon denial of a motion to vacate or modify an arbitration award.

Application:  Supreme Court denied the petition to vacate the arbitration award, deemed the motion to dismiss the petition to be a motion to confirm the award, and granted the motion. The Appellate Division affirmed, noting that a motion to confirm was not necessary.

Matter of ReductoNox Corp. vs. Siemens Energy, Inc., NY Slip Op 05613 (1st Dep't October 1, 2026)

Here is the decision.

Landlord-tenant

Practice point:  Tenants may challenge the purportedly deregulated status of their apartment at any time during their tenancy, and the apartment's rent history may be examined beyond four years to determine whether it remains rent-stabilized.

Application:  According to defendant, the last rent-controlled rent was approximately $620 per month, but defendant asserted a first rent following decontrol of $2,100 per month beginning in 2011, $100 above the deregulation threshold in effect at the time. However, the affidavit of a member of defendant's managing agent that defendant submitted in support of its cross-motion for summary judgment failed to authenticate as admissible business records the documents offered as proof of the foregoing facts. Accordingly, defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, and its cross-motion for summary judgment should have been denied regardless of the sufficiency of the opposing papers.

Petrolowicz vs. Ando Realty, LLC, NY Slip Op 05611 (1st Dep't October 1, 2026)

Here is the decision.

Foreclosures

Practice point:  In order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with evidence of the default. A plaintiff can establish a default by submission of an affidavit from a person having personal knowledge of the facts, or other evidence in admissible form. The business record exception to the hearsay rule applies to a writing or record, and it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Without the introduction of the records themselves, a witness's testimony as to the contents of the records is inadmissible hearsay.

Application:  The Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference on the ground that the plaintiff failed to establish, prima facie, the defendants' default in payment.  In an affidavit of the plaintiff's vice president, which the plaintiff submitted in support of its motion for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference, The affiant  did not aver that he had personal knowledge of the defendants' alleged default in payment. To the extent that his knowledge was based on his review of business records, he did not identify what records he relied on and he did not attach them to his affidavit. Thus, the plaintiff failed to submit evidence in admissible form to establish the defendants' default. Since the plaintiff failed to establish the defendants' default in payment, it failed to establish its prima facie entitlement to judgment as a matter of law, as well as its entitlement to an order of reference and a judgment of foreclosure and sale.

Banc of Cal., N.A. vs. Plumbing Supply Distributor., LLC, NY Slip Op 05510 (2d Dep't September 30, 2026)

Here is the decision.

Premises liability

Practice point:  In a premises liability case, a defendant-property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of it. However, a property owner has no duty to protect or warn against conditions that are open and obvious and not inherently dangerous. A condition is open and obvious if it is readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident.

Application:  The defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that the air conditioning unit protruding from the window was open and obvious and not inherently dangerous. In opposition, the plaintiffs failed to raise a triable issue of fact.

Hoefler vs. Shoreham-Wading Riv. Cent. Sch. Dist., NY Slip Op 05384 (2d Dep't September 23, 2026)

Here is the decision.