Foreclosures

Practice point:  In order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with evidence of the default. A plaintiff can establish a default by submission of an affidavit from a person having personal knowledge of the facts, or other evidence in admissible form. The business record exception to the hearsay rule applies to a writing or record, and it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Without the introduction of the records themselves, a witness's testimony as to the contents of the records is inadmissible hearsay.

Application:  The Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference on the ground that the plaintiff failed to establish, prima facie, the defendants' default in payment.  In an affidavit of the plaintiff's vice president, which the plaintiff submitted in support of its motion for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference, The affiant  did not aver that he had personal knowledge of the defendants' alleged default in payment. To the extent that his knowledge was based on his review of business records, he did not identify what records he relied on and he did not attach them to his affidavit. Thus, the plaintiff failed to submit evidence in admissible form to establish the defendants' default. Since the plaintiff failed to establish the defendants' default in payment, it failed to establish its prima facie entitlement to judgment as a matter of law, as well as its entitlement to an order of reference and a judgment of foreclosure and sale.

Banc of Cal., N.A. vs. Plumbing Supply Distributor., LLC, NY Slip Op 05510 (2d Dep't September 30, 2026)

Here is the decision.

Premises liability

Practice point:  In a premises liability case, a defendant-property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of it. However, a property owner has no duty to protect or warn against conditions that are open and obvious and not inherently dangerous. A condition is open and obvious if it is readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident.

Application:  The defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that the air conditioning unit protruding from the window was open and obvious and not inherently dangerous. In opposition, the plaintiffs failed to raise a triable issue of fact.

Hoefler vs. Shoreham-Wading Riv. Cent. Sch. Dist., NY Slip Op 05384 (2d Dep't September 23, 2026)

Here is the decision.

Appellate practice

Practice point:  The death of a party terminates the attorney's authority to act on behalf of the deceased party. 

Application:  The plaintiff died after the commencement of this action, and no substitution was effected. Nevertheless, counsel that had represented the plaintiff prior to his death purportedly took this appeal on his behalf. Since counsel lacks the authority to act on the plaintiff's behalf, the appeal purportedly taken on the plaintiff's behalf must be dismissed.

Guthrie vs. New York-Presbyt. Brooklyn Methodist Hosp., NY Slip Op 05383 (2d Dep't September 23, 2026)

Here is the decision.

Contract law

Practice point. Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party. However, a party that enters into a contract to render services may be said to have assumed a duty of care, and, thus, be potentially liable in tort to third persons, where: (1) the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm; (2) the plaintiff detrimentally relies on the continued performance of the contracting party's duties; or (3) the contracting party has entirely displaced the other party's duty to maintain the premises safely. If any of the exceptions are pleaded in the complaint or the bill of particulars, a defendant contractor is required to demonstrate that those pleaded exceptions do not apply in order to establish its prima facie entitlement to judgment as a matter of law.

Application: The Supreme Court properly granted that branch of City-Wide's motion which was for summary judgment dismissing the cross-claims asserted against it. Viewed in the light most favorable to the restaurant defendants, as the nonmoving parties, the complaint in Action No. 1, the second amended complaint in Action No. 2, and the bills of particulars alleged the first of the three exceptions. In support to its motion, City-Wide established, prima facie, that neither the police plaintiffs nor the decedent were parties to any agreement between it and Legal Sea Foods, and that the repair work it performed four days prior to the incident neither launched an instrument of harm nor created or exacerbated the alleged dangerous condition at the restaurant.

Fezza vs. Legal Sea Foods, LLC, NY Slip Op 05382 (2d Dep't September 23, 2026)

Here is the decision.

Personal jurisdiction

Practice point:  A defendant may waive the issue of lack of personal jurisdiction by appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss. A defendant appears formally by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer. A defendant may appear informally by actively litigating the action before the court.

Application:  The defendant's participation in settlement conferences pursuant to CPLR 3408 and the limited notice of appearance filed for that purpose did not demonstrate a clear intent to participate in the lawsuit on the merits, and, thus, did not constitute a formal or informal appearance. However, the defendant's counsel later filed a general notice of appearance, and did not move to dismiss the complaint on the ground of lack of personal jurisdiction at that time or assert lack of personal jurisdiction in a responsive pleading. By waiting another 3½ years before making a cross-motion to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction, the defendant waived any claim that the Supreme Court lacked personal jurisdiction over her. The defendant's contention that the plaintiff waived this issue by failing to raise it in opposition to the cross-motion or at the hearing to determine the validity of service of process upon the defendant is without merit.

Accordingly, since the defendant waived the issue of lack of personal jurisdiction, the Supreme Court erred in granting that branch of the defendant's motion which was to restore to the calendar that branch of her cross-motion which was to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction, and, in effect, granting that branch of the cross-motion.

Federal Natl. Mtge. Assn. vs. Cassis, NY Slip Op 05381 (2d Dep't September 23, 2026)

Here is the decision.

Summary judgment motions

There is no merit to the defendants' contention that the motion should have been denied as premature because discovery had yet to take place, pursuant to CPLR 3212[f]). It is well-settled that the mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion. Moreover, the defendants failed to demonstrate that the relevant facts were in the plaintiff's exclusive control.

Bank of Am., N.A. vs. Discobath Prods., Inc., NY Slip Op 05377 (2d Dep't September 23, 2026)

Here is the decision.

Appellate practice

Plaintiff abandoned his appeal of the dismissal of the cause of action seeking inspection of the condominium board's records. Supreme Court dismissed this cause of action for plaintiff's lack of standing, and plaintiff's argument on appeal with respect to the issue of standing was limited to the two derivative causes of action.

Bent vs. Cirone, NY Slip Op 05456 (1st Dep't September 24, 2026)

Here is the decision.

Contract law

Where a seller seeks to hold a purchaser in breach of contract, the seller must establish that it was ready, willing, and able to perform on the time-of-the-essence closing date, and that the purchaser failed to demonstrate a lawful excuse for its failure to close. In light of the plaintiff's contractual obligations at closing, its bare assertion that it tendered the deed in the defendants' absence was insufficient to establish, prima facie, that the plaintiff was ready, willing, and able to perform on the adjourned closing date. 

1539 Realty, LLC vs. Murphy, NY Slip Op 05376 (2d Dep't September 23, 2026)

Here is the decision.

Contract law

Contract interpretation is a question of law subject to de novo review. A complete, clear, and unambiguous agreement must be enforced according to its plain terms. Courts seek the parties' reasonable expectations, giving words their fair meaning in context.

Aurelius Capital Master Ltd. vs. Hertz Intl. Ltd., NY Slip Op 05369 (1st Dep't September 22, 2026)

Here is the decision.

Venue

Pursuant to CPLR 503(a), "[e]xcept where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced; [or] the county in which a substantial part of the events or omissions giving rise to the claim occurred." CPLR 510(3) provides that, upon motion, the court may change the venue of an action where "the convenience of material witnesses and the ends of justice will be promoted by the change." A party moving to change venue pursuant to CPLR 510(3) must provide information about the prospective witnesses, including, but not limited to, their names and addresses, disclose the facts about which the proposed witnesses will testify at the trial, represent that the prospective witnesses are willing to testify, and state that the witnesses would be inconvenienced if the venue is not changed. The situs of a plaintiff's injury may provide a basis for a discretionary change of venue in that, things being equal, a transitory action should be tried in the county where the cause of action arose.

Bellavia vs. Hoppenstein, NY Slip Op 05267 (2d Dep't September 16, 2026)

Here is the decision.

Premises liability

Under the storm in progress rule, a property owner 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.

Batista vs. Allerton Ave. Estates, LLC, NY Slip Op 05265 (2d Dep't September 16, 2026)

Here is the decision.