Court holiday

Service of process

CPLR 308(4) requires due diligence in seeking to effectuate service on a defendant before resorting to nail-and-mail service. Generally, a plaintiff can establish diligence by providing an affidavit of service indicating efforts to serve the defendant at the defendant's residence on three different occasions, at different times of day. However, there is not the requisite due diligence where all of the dates of attempted personal service were during the work week and during normal business hours and in the same afternoon window.

Unitrin Safeguard Ins. Co, v. Della-Noce, NY Slip Op 00601 (1st Dep't February 5, 2026)

Here is the decision.

The emergency doctrine

The emergency doctrine provides that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or which is so reasonably disturbing that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context. Ordinarily, whether there was an emergency and whether the defendant's response was reasonable are questions of fact. However, summary judgment may be granted on the basis of sufficient evidence demonstrating both an emergency and the reasonableness of the actor's response to it.

Callands v. County of Westcheter, NY Slip Op 00489 (2d Dep't February 4, 2026)

Here is the decision.

Appellate practice

No appeal lies from an order refusing to sign an order to show cause, as it is an ex parte order that does not decide a motion made on notice, pursuant to CPLR 5701[a][2].

S.A.W. v. Archdiocese of N.Y., NY Slip Op 00603 (1st Dep't February 5, 2026)

Here is the decision.

Employment law

While an employer is not vicariously liable for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business, the employer may be liable under theories of negligent hiring, retention, or supervision of the employee.  A cause of action based on negligent hiring, retention, or supervision requires a showing that the employer knew or should have known of the employee's propensity for the conduct which caused the injury and that there is a connection between the defendant's negligence and the plaintiff's injuries.

BCVAWCH-Doe v. Roman Catholic Archdiocese of N.Y., NY Slip Op 00488 (2d Dep't February 4, 2026)

Here is the decision.

Sanctions for frivolous conduct

A court may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct, pursuant to 22 NYCRR 130-1.1(a). Conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false.

Aretakis v. CPEX Real Estate, LLC, NY Slip Op 00486 (2d Dep't February 4, 2026)

Here is the decision.

Motions to intervene

Failure to submit a proposed answer or other pleading is fatal to a motion to intervene, pursuant to CPLR 1014.

U.S. Bank, N.A. v. Brown, NY Slip Op 00483 (1st Dep't February 3, 2026)

Here is the decision.

Summary judgment

A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment. The party opposing summary judgment is entitled to obtain further discovery when it appears that there may be facts supporting the opposing party's position but those cannot then be stated. A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant.

Zihui Lin v. Cheng Liu, NY Slip Op 00403 (2d Dep't January 28, 2026)

Here is the decision.

Appellate practice

In this legal malpractice action, defendants' argument concerning litigation strategy and professional judgment was raised for the first time on appeal and, therefore,  is unpreserved.

Park W. Exec. Servs., Inc. v. Gallo Vitucci & Klar, LLP, NY Slip Op 00428 (1st Dep't January 29, 2026)

Here is the decision.

Motions for summary judgment

The party moving for summary judgment bears the initial burden to 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. A moving defendant cannot satisfy this burden merely by pointing to gaps in the plaintiff's case; it must affirmatively demonstrate the merits of its defense.

Chin v. Pacific 10, LLC, NY Slip Op 00343 (2d Dep't January 28, 2026)

Here is the decision.

Appellate practice

An issue is properly before the Appellate Division where the defendants did not raise it until their reply papers, but raised it in their opening brief on appeal and plaintiff, without objecting, responded to it substantively.

Fernandez v. Sukhdeep, NY Slip Op 00422 (1st Dep't January 29, 2026)

Here is the decision.