Inter vivos gifts

The elements necessary for a valid inter vivos gift are: (1) the donor's intent to make an irrevocable present transfer of ownership; (2) physical or constructive delivery, sufficient to divest the donor of dominion and control over the property; and (3) acceptance of the gift by the donee. The proponent of the purported gift has the burden of proving each of the elements by clear and convincing evidence.

Eng v. Eng, NY Slip Op 04840 (2d Dep't August 5, 2026)

Here is the decision.

Law of the case

The doctrine of the law of the case operates to foreclose re-examination of the issue absent a showing of new factual circumstances, additional relevant evidence, or a change in the law that would warrant reconsideration of the issue. 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.

DLJ Mtge. Capital, Inc. v. Pittman, NY Slip Op 04838 (2d Dep't August 5, 2026)

Here is the decision.

Suing the State

Pursuant to Court of Claims Act § 11(b), a notice of intention to file a claim and a claim must set forth, among other things, the place where the claim arose. A failure to comply with the requirements set forth in the statute is a jurisdictional defect compelling dismissal of the claim.  Although § 11(b) does not require absolute exactness, it requires a statement made with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances.

Dipolito v. State of New York, NY Slip Op 04837 (2d Dep't August 5, 2026)

Here is the decision.

Contract law

 A release is a contract, and its construction is governed by contract law.

Board of Mgrs. of the Waterwheel Condominium, LLC v. Ardsley Waterwheel Partners, LLC, NY Slip Op 04834 (2d Dep't August 5, 2026)

Here is the decision.

Summary judgment standard

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers.

Armstrong v. Dumbo Lofts Rental, LLC, NY Slip Op 04832 (2d Dep't August 5, 2026)

Here is the decision.

Dismissal of defenses

CPLR 3211(b) provides that "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." When moving to dismiss, the plaintiff bears the burden of demonstrating that the affirmative defenses are without merit as a matter of law because they either do not apply under the facts, or fail to state a defense. On a motion pursuant to CPLR 3211(b), the court should apply the same standard it applies to a motion to dismiss pursuant to CPLR 3211(a)(7), and the factual assertions of the defense will be accepted as true. If there is any doubt as to the availability of a defense, it should not be dismissed.

Alava v. Buffalo Airport Car Rental, NY Slip Op 04830 (2d Dep't August 5, 2026)

Here is the decision.

Failure to appear

In order to vacate the default in appearing for oral argument, the plaintiff was required to demonstrate a reasonable excuse for his default and a potentially meritorious opposition to the defendants' motion. The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion.  Law office failure may be accepted as a reasonable excuse, provided that it is supported by a detailed and credible explanation.

Aguilar v. Tona Constr. & Mgt., LLC, NY Slip Op 04829 (2d Dep't August 5, 2026)

Here is the decision.

Failure to oppose

The proper procedure to cure a default in opposing a motion is to move pursuant to CPLR 5015(a) to vacate the default, and, if necessary, to appeal that determination. A motion denominated as one for leave to renew an unopposed motion may be construed as one to vacate the default.

Abingdon Realty Co., LLC v. Finkelshteyn, NY Slip Op 04828 (2d Dep't August 5, 2026)

Here is the decision.

Leave to amend

Plaintiff's proposed amendment did not advance a new theory of liability but merely expounded on theories of liability already set forth in the prior bill.  There was no showing of sufficient surprise or prejudice to deny the amendment. The motion is granted.

Batchilly v. 610 8th Ave. Corp., NY Slip Op 04910 (1st Dep't August 6, 2026)

Here is the decision.

Fees on fees

The portion of the award for legal fees and costs incurred by the defendant in prosecuting a claim for an award of attorneys' fees - so-called "fees on fees," for services performed to recover a fee award - generally must be based upon a specific contractual provision or statute. Where a contract provides for indemnification for "legal costs and charges, including counsel fees," the Appellate Division has determined that it does not provide for fees on fees in the absence of unmistakably clear intent regarding their recovery. However, both the Court of Appeals and the Appellate Division have authorized the inclusion of fees for prosecuting or defending an appeal dealing with an award of attorneys' fees.

21st Mtge. Corp. v Nweke, NY Slip Op 04826 (2d Dep't August 5, 2026)

Here is the decision.

Employment law

An employer can be held liable under theories of negligent hiring, retention, and supervision where the complaint alleges that the employer knew or should have known of the employee's propensity for the conduct which caused the injury.

D & A Grandview, LLC v. 60 Davidson, LLC, NY Slip Op 04743 (2d Dep't July 29, 2026)

Here is the decision.