Time to serve summons and complaint

Practice point:  Generally, service of a summons and complaint must be made within 120 days after the commencement of the action. Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant an extension of time within which to effect service for good cause shown or in the interest of justice.The more flexible interest of justice standard accommodates late service that might be due to mistake, confusion, or oversight, so long as there is no prejudice to the defendant. In considering the interest of justice standard, the court may consider diligence, or lack thereof, along with any other relevant factor, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to the defendant.

Application:  The Supreme Court providently exercised its discretion in granting the plaintiff's motion in the interest of justice, and properly determined that dismissal of complaint insofar as asserted against the defendant pursuant to CPLR 306-b and 3211(a)(8) on the ground of the plaintiff's failure to serve the defendant with the summons and complaint was not warranted. The plaintiff demonstrated that the action was timely commenced, that service was timely attempted and was believed by the plaintiff to have been made within 120 days after the commencement of the action, but was subsequently found to be defective, and that the extension of time would not prejudice the defendant. Additionally, the plaintiff demonstrated a potentially meritorious cause of action.

Deutsche Bank Natl. Trust Co. vs. Hall, NY Slip Op 05932 (2d Dep't October 14, 2026)

Here is the decision.

Contract law

Practice point:  When a party repudiates contractual duties prior to the time designated for performance and before all of the consideration has been fulfilled, the repudiation entitles the non-repudiating party to claim damages for total breach.  

Application:  The record establishes that defendants repudiated the contract by issuing a change order requesting additional payments followed by a threat to not return to the job unless plaintiffs agreed to pay the initial amount demanded, which threat was fulfilled when they abandoned the project. Defendants' largely conclusory allegations of plaintiffs' delays fail to raise material issues of fact sufficient to preclude a grant of summary judgment.

Ho vs. Star Contrs., Inc., NY Slip Op 05908 (1st Dep't October 13, 2026)

Here is the decision.

Defaults

Practice point:  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." The language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory. In order to establish sufficient cause, the plaintiff must proffer a reasonable excuse for the delay in timely moving for a default judgment and demonstrate that the cause of action is potentially meritorious.

Application:  Initially, contrary to the Supreme Court's determination, it was not precluded from considering the defendant's cross-motion pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against her as abandoned pursuant to the doctrine of law of the case. The order dated January 3, 2019, did not resolve on the merits whether the plaintiff abandoned the action pursuant to CPLR 3215(c). Further, the plaintiff failed to proffer a reasonable excuse for its lengthy delay in seeking a default judgment. The plaintiff's conclusory and unsubstantiated assertions that periods of delay were attributable to "loss mitigation discussions with [the] Borrower," compliance with a then newly-issued administrative order, and a change in counsel were insufficient to constitute a reasonable excuse. Since the plaintiff failed to set forth a reasonable excuse, the Appellate Division need not determine whether it asserted a potentially meritorious cause of action.

Deutsche Bank Natl. Trust Co. vs. Faies, NY Slip Op 05767 (2d Dep't October 7, 2026)

Here is the decision.

Statute of limitations as a defense

Practice point:  The doctrine of equitable estoppel applies where it would be unjust to allow a defendant to assert a statute of limitations defense. Thus, the defense of statute of limitations may be precluded where it is the defendant's affirmative wrongdoing that produced the long delay between the accrual of the cause of action and the commencement of the legal proceeding.

Application:  The defendants' admissions in their moving papers, together with the plaintiff's submissions in opposition to the motion, demonstrated that the plaintiff's delay in the commencement of this action was the result of the defendants' misconduct during the limitations period, and, therefore, that equitable estoppel is appropriate as a matter of law. The Supreme Court properly denied that branch of the defendants' motion which was, in effect, for summary judgment dismissing the complaint insofar as asserted against them as time-barred.

Bank of Am., N.A. vs. Russell, NY Slip Op 05759 (2d Dep't October 7, 2026)

Here is the decision.

Court holiday

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 generally is 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 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.