Service of process

Where service is effected pursuant to CPLR 308(4), the affix and mail method, the plaintiff must demonstrate that the summons was affixed to the door of the dwelling place or usual place of abode of the person to be served and mailed to such person's last known residence. At a hearing on the validity of service of process, the plaintiff bears the burden of proving personal jurisdiction by a preponderance of the evidence. In reviewing a determination made after a hearing, the Appellate Division's authority is as broad as that of the hearing court, and it may render the determination it finds warranted by the facts, taking into account that, in a close case, the hearing court had the advantage of seeing and hearing the witnesses.

Bank of Am., N.A. v. D'Andrade, NY Slip Op 04484 (2d Dep't July 22, 2026)

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Employment law

The doctrine of respondeat superior renders the employer vicariously liable for a tort committed by its employee within the scope of employment. An action may be considered to be within the scope of employment when the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to the employment. However, as a general rule, an employer who hires an independent contractor, as distinguished from an employee, is not liable for the negligent acts of the independent contractor. Whether an actor is an independent contractor or an employee for the purposes of tort liability is usually a factual issue for the jury.

Bandele v. Rasier-NY, LCC, NY Slip Op 04483 (2d Dep't July 22, 2026)

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Attorneys' fees

The determination of what constitutes a reasonable attorney's fee is a matter within the sound discretion of the Supreme Court. The attorney bears the burden of establishing the reasonable value of the services rendered, based upon a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community.

11H, LLC v. Adegunle, NY Slip Op 04478 (2d Dep't July 22, 2026)

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Contract law

It has long been the rule that ambiguities in a contractual instrument will be resolved contra proferentem, against the party who prepared or presented it.

Denemark v. New Ch. Capital, Inc., NY Slip Op 04553 (1st Dep't July 23, 2026)

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Appellate practice

 The appeal from so much of the order dated August 7, 2024, as granted that branch of K.C.'s application which was pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against it on the ground that the plaintiff did not comply with the conditional order of preclusion must be dismissed, because that portion of the order did not decide a motion made on notice, pursuant to CPLR 5701[a][2], and leave to appeal from that portion of the order has not been granted.

Village's motion pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against it must be dismissed, because no appeal lies from an order entered upon the default of the appealing party, pursuant to CPLR 5511.

Chelsea Café Group, LLC v. K.C. Engg. & Land Surveying, P.C., NY Slip Op 04396 (2d Dep't July 15, 2026)

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Vacating a default

A party seeking to vacate a default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion. While CPLR 2005 allows courts to excuse a default due to law office failure, it was not the Legislature's intent to routinely excuse such defaults, and mere neglect will not be accepted as a reasonable excuse. A conclusory, undetailed, and uncorroborated claim of law office failure does not rise to the level of a reasonable excuse.

Ferere v. Saks Fifth Ave., LLC, NY Slip Op 04401 (2d Dep't July 15, 2026)

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Title VII

In order to state a prima facie case of failure to accommodate religious belief or practice under Title VII, a plaintiff must demonstrate (1) that he actually required an accommodation of his religious practice, and (2) that the employer’s desire to avoid the actually required prospective accommodation was a motivating factor in (3) an adverse employment decision.

Bergin v. N.Y. State Unified Court System, 2d Cir. July 15, 2026)

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Economic loss doctrine

Economic harms, absent an injury to person or property, should be resolved in contract, rather than tort.

Asinga v. Gatorade Co., 2d Cir. July 17, 2026

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Amended pleadings

A claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions or occurrences to be proved in the amended pleading, pursuant to CPLR 203[f]. The relation-back doctrine permits a plaintiff to interpose a claim or cause of action which would otherwise be time-barred, where the allegations of the original complaint gave notice of the transactions or occurrences to be proved and the cause of action would have been timely interposed if asserted in the original complaint. When determining whether a defendant has been placed on notice of the transactions or occurrences underlying a new claim for purposes of CPLR 203(f) and the relation-back doctrine, the court should look only at the four corners of the original pleading.

Benjamin v. Nail Peak, Inc., NY Slip Op 04394 (2d Dep't July 15, 2026)

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Defaults

After having been served with process, the defendant who wants to avoid a default must respond in a proper and timely manner. CPLR 320 specifies three ways by which the defendant can appear in the action: (1) service of an answer; (2) making a motion which has the effect of extending the time to answer; or (3) serving a notice of appearance.

A notice of appearance is a simple document that notifies the plaintiff that the defendant is appearing in the action. Although a defendant appears within the meaning of CPLR 320(a) by merely serving a notice of appearance, service of the notice does not absolve a defendant from complying with the time restrictions imposed by CPLR 320(a) which govern the service of an answer or the making of a motion pursuant to CPLR 3211.

Contrary to the defendants' contention, they defaulted in appearing in the action by failing to timely answer the complaint. The filing of a notice of appearance and opposition to the plaintiff's prior motions did not cure the defendants' default.

55-57 Hester Grocery, Inc. v. Queens Metro Stop, Inc., NY Slip Op 04392 (2d Dep't July 15, 2026)

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Appellate practice

The appeal from so much of the order as directed a hearing to determine whether the defendant was properly served with process is dismissed. The challenged portion of the order merely directed a judicial hearing to aid in the disposition of a motion and does not affect a substantial right. Therefore, it is not appealable as of right, and leave to appeal has not been granted.

Chevy Chase Funding, LLC v. Aucapina, NY Slip Op 04274 (2d Dep't July 8, 2026)

Here is the decision.