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.

Motions to dismiss

In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one.

Gooding v. Bank of N.Y. Mellon, NY Slip Op 05167 (2d Dep't September 2, 2026)

Here is the decision.

A deceased mortgagor

A party may not commence a legal action or proceeding against a dead person. Thus, when a mortgagor dies prior to the commencement of a foreclosure action, the action is a legal nullity, unless the action is commenced against the personal representative of the mortgagor's estate.

Federal Natl. Mtge. Assn. v. Gooch, NY Slip Op 05165 (2d Dep't September 2, 2026)

Here is the decision.

Dismissal based on documentary evidence

A party may move to dismiss a complaint pursuant to CPLR 3211(a)(1) where the movant has a defense founded on documentary evidence. The evidence submitted in support of the motion must be documentary or the motion must be denied. Emails do not qualify as documentary evidence.

Druzhinsky v. Trump Vil. Section 4, Inc., NY Slip Op 05164 (2d Dep't September 2, 2026)

Here is the decision.

Appellate practice

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action.

Druzhinsky v. Trump Vil. Section 4, Inc., NY Slip Op 05163 (2d Dep't September 2, 2026)

Here is the decision.

Premises liability

Premises liability, as with liability for negligence generally, begins with duty. It is for the court to determine whether any duty exists, taking into consideration the reasonable expectations of the parties and society in general. The scope of any such duty of care varies with the foreseeability of possible harm. Generally, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property.

Cox v. Cove 5, LLC, NY Slip Op 05160 (2d Dep't September 2, 2026)

Here is the decision.

Section 60

Arbitration provisions

Arbitration is a matter of contract, grounded in an agreement between the parties. Thus, when deciding whether the parties agreed to arbitrate a certain matter, the court will apply the principles that govern the formation of contracts. If the parties have broadly agreed to arbitrate any dispute arising out of a contract, the court's sole inquiry is whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the underlying contract.

Under contract law, the general rule is that only a party to an arbitration agreement is bound by or may enforce the agreement. However, an assignee of a contract may avail itself of an arbitration clause contained therein.

Breslin Brookhaven, LLC v. Rose, NY Slip Op 05156 (2d Dep't September 2, 2026)

Here is the decision.

Medical malpractice

To establish a cause of action to recover damages based on lack of informed consent, a plaintiff must prove: (1) the treatment provider failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives thereto; (2) a reasonably prudent patient, if fully informed, would not have undergone the treatment; and (3) the lack of informed consent is a proximate cause of the injury. The mere fact that the plaintiff signed a consent form does not establish the defendants' prima facie entitlement to judgment as a matter of law. 

Boutereira v. Grotas, NY Slip Op 05155 (2d Dep't September 2, 2026)

Here is the decision.

Contract law

New York courts routinely enforce liability-limitation provisions, especially when negotiated by sophisticated parties. The Appellate Division has recognized an exception to this general rule in cases where a party's alleged misconduct smacks of intentional wrongdoing that is fraudulent, malicious, or prompted by the sinister intention of a party acting in bad faith. The type of intentional wrongdoing that could render a contractual limitation unenforceable is that which is unrelated to any legitimate economic self-interest. Where the conduct in question was undertaken to advance a legitimate economic self-interest, a party is entitled to rely on the contractual limitation provision, notwithstanding the intentional nature of its actions.

Jeffries, LLC v. Mountain State Energy Holdings, LLC, NY Slip Op 05232 (1st Dep't September 3, 2026)

Here is the decision.

Dismissal as abandoned

Pursuant to CPLR 3215(c), "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed."  In order to avoid dismissal pursuant to the statute, it is not necessary for a plaintiff to actually obtain a default judgment within one year of the default. As long as proceedings are being taken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case is not subject to dismissal. Once the plaintiff establishes that it had initiated proceedings for the entry of a judgment within one year, it is in compliance with CPLR 3215(c) and is not required to account for any additional periods of delay subsequent to the initial one-year period.

Aurora Loan Servs., LLC v. Miller, NY Slip Op 05153 (2d Dep't September 2, 2026)

Here is the decision.