Contract law

The equitable remedy of specific performance is a discretionary remedy that provides an alternative to an award of damages as a means of enforcing a contract. The decision whether to grant or deny the remedy of specific performance lies within the discretion of the court. It should not be granted where it would cause unreasonable hardship or injustice.

90 Chicken Corp. v. 90 Jericho Realty Corp., NY Slip Op 05258 (2d Dep't September 16, 2026)

Here is the decision.

Contract law

Lease provisions purporting to exempt a lessor from liability for its own negligence are void as against public policy. However, where sophisticated parties, negotiating at arm's length, have agreed to allocate between themselves the risk of liability to third parties, through insurance, the agreement is enforceable.

Hearns v. Blended Family, LLC, NY Slip Op 05367 (1st Dep't September 17, 2026)

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Appellate practice

In reviewing a determination made after a non-jury trial, the Appellate Division's power is as broad as that of the trial court. The Appellate Division may render the judgment it finds warranted by the facts, taking into account that, in a close case, the trial judge had the advantage of seeing the witnesses.

90 Chicken Corp. v. 90 Jericho Realty Corp., NY Slip Op 05258 (2d Dep't September 16, 2026)

Here is the decision.

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)

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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.