Service of process

A court lacks personal jurisdiction over a defendant who is not properly served with process. Service upon a natural person must be made in strict compliance with CPLR 308. A process server's affidavit constitutes prima facie evidence of proper service. A mere conclusory denial of service is insufficient to rebut the presumption of proper service arising from the affidavit. To warrant a hearing to determine the validity of service of process, the denial of service must be substantiated by specific, detailed facts that contradict the affidavit.

Here, the process server's affidavit constituted prima facie evidence that the defendant was properly served pursuant to CPLR 308(2). The defendant failed to rebut the presumption of proper service. The defendant's sworn statement submitted in support of his motion contained only conclusory averments that he was not served with process on the date of service and that he lives alone, and was not otherwise substantiated by specific facts. The additional sworn submissions improperly offered by the defendant for the first time in reply may not be considered.

Accesslex Inst. v. Lee, NY Slip Op 04165 (2d Dep't July 1, 2026)

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Vacating a default

A party seeking to vacate an order entered upon a default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion. A motion to vacate a default is addressed to the sound discretion of the court.

Guercia v. Gao, NY Slip Op 03950 (2d Dep't June 24, 2026)

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Sanctions

The trial court improvidently exercised its discretion in denying plaintiff an award of sanctions despite noting that defendant knowingly asserted a meritless position for the purpose of delaying and prolonging the litigation. The record established that defendant prolonged the litigation based on largely meritless claims to avoid payment of the Notes and that its founder and Chief Executive Officer made false statements of material fact, rendering the conduct frivolous.

Defendant provided no support in the record for the CEO's statements in his affidavit that: (1) plaintiff represented that the Notes would be consolidated; (2) the repayment date would be extended to December 31, 2024; (3) defendant's Chief Financial Officer acted as an agent for plaintiff in breach of his fiduciary duty to defendant; and (4) the CFO presented unauthorized financial projections to plaintiff. These claims were denied by the Chief Administration Officer of plaintiff's general partner and the CFO, and documents in the record demonstrate that they are false. Moreover, defendant's CEO's June 19, 2024 email demonstrated that he intended to prolong the litigation by asserting baseless claims to delay payment of the Notes.

While sanctions should not be imposed so as to restrict ultimately unpersuasive, good-faith arguments requiring a review of the law, there is no good faith here. Presenting knowingly false affidavits to a court is a proper basis for the imposition of sanctions.

Remanded for a determination of appropriate sanctions to be imposed upon defendant, pursuant to 22 NYCRR 130-1.1[a].

Mendon Ventures Fintech Fund, LP v. Equitus Corp., NY Slip Op 04040 (1st Dep't June 25, 2026)

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Contract law

The complaint sufficiently states a claim for breach of contract, as it identifies the agreement, and alleges plaintiff's performance, defendants' breach of numerous provisions, and resulting damages. Although the pleaded damages were imprecise, it is not fatal at this pre-answer, pre-discovery stage of the litigation.The action was not premature, as defendants did not prove that there was no notice or that the agreement's notice and mediation provisions were express conditions precedent. The provision that either party "may" demand mediation suggests permissiveness. As to the argument that plaintiff failed to invoke the agreement's audit procedures, defendants' alleged withholding of accountings frustrated the process. 

Greer v. FAM Networks, LLC, NY Slip Op 04039 (1st Dep't June 25, 2026)

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Appellate practice

Defendant's argument that the second amended bill of particulars is a nullity is unpreserved since it is raised for the first time on appeal. However, because it is a legal issue appearing on the face of the record which could not have been avoided if it had been timely raised, it is reviewable on appeal.

Di Giulio v. New York City Tr. Auth., NY Slip Op 04037 (1st Dep't June 25, 2026)

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Landlord-tenant law

There is no constructive eviction claim absent an allegation that the landlord's wrongful conduct deprived the tenant of the use of the premises.

Amsterdam 140, LLC v. Fruitopia, LLC, NY Slip Op 04035 (1st Dep't June 25, 2026)

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Medical malpractice

Defendant met its prima facie burden of demonstrating that the action was barred by the statute of limitations by showing that plaintiff sought no further treatment for his arm injury after he returned for a post-operative evaluation on March 15, 2021, and that he commenced the action on September 25, 2023, more than two years and six months after that date. Once defendant met its prima facie burden, it was plaintiff's burden to demonstrate triable issues of fact with respect to application of the continuous treatment doctrine. Plaintiff failed to meet his burden. Preliminarily, the record contains no indication that plaintiff submitted papers in opposition to defendant's motion. In any event, the record includes no evidence suggesting that plaintiff sought or obtained any additional treatment for his condition after March 15, 2021. Although the medical chart from the appointment contains a note stating that plaintiff was to come back for a follow-up visit in six weeks, the record contains no evidence indicating that plaintiff ever scheduled or attended such an appointment.

Backer v. Parsons, NY Slip Op 03917 (1st Dep't June 23, 2026)

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Releases

A valid release constitutes a complete bar to an action on a claim which is the subject of the release. A clear and unambiguous release will be fully enforced, and the court may not look to extrinsic evidence to determine the parties' intent. Although a defendant has the initial burden of establishing that it has been released from any claims, a signed release shifts the burden of going forward to the plaintiff to show that there has been fraud, duress or some other fact which is sufficient to void the release.

Aretakis v. Sheehan, NY Slip Op 03773 (2d Dep't June 17, 2026)

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Default judgments

Defendant failed to establish that the judgment, which was entered after defendant's default, was secured by extrinsic fraud. Regardless of the validity of his allegation that plaintiff concealed from him the scheduling of two court conferences, that information was available to defendant through e-courts, to which defendant previously admitted having access. Nor does defendant's contention that plaintiff engaged in intrinsic fraud by misrepresenting the scope of its work in the underlying action compel vacatur of the judgment because defendant failed to provide a reasonable excuse for his default and has not demonstrated a meritorious defense since the record reflects that, contrary to his contentions, plaintiff did not misrepresent the work it performed on his behalf in the underlying action.

Dunnington Bartholow & Miller, LLP v. Simon,, NY Slip Op 03878 (1st Dep't June 18, 2026)

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Premises liability

A defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of it. This burden may be established by presenting evidence that there was a storm in progress when the injured plaintiff allegedly slipped and fell.

Under the storm in progress doctrine, a landowner will not be held liable in negligence for a plaintiff's injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter. A lull in the storm does not impose a duty to remove the accumulation of snow or ice before the storm ceases in its entirety. However, even if a storm is ongoing, once a property owner elects to remove snow or ice, it must do so with reasonable care or it could be held liable for creating a hazardous condition or exacerbating a natural hazard created by the storm. The failure to remove all the snow and ice, without more, does not establish that the defendant increased the risk of harm.

Archie v. Cunningham Assoc., L.P., NY Slip Op 03772 (2d Dep't June 17, 2026)

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Derivative claims

The derivative claims that were asserted against the individual defendants on behalf of the condominium's unit owners are dismissed. It is undisputed that plaintiff has standing to pursue the direct claims in this matter based on a proper assignment of all litigation claims against defendants by his wife, the unit owner. However, neither the assignment, nor any other instrument, transferred to him the membership interest in the condominium that is required for the assertion of derivative claims on behalf of the unit owners.

Bent v. Cirone, NY Slip Op 03875 (1st Dep't June 18, 2026)

Here is the decision.