Non-joinder of a necessary party

Dismissal of an action or proceeding for non-joinder of a necessary party is a last resort. When a necessary party has not been made a party and is subject to the jurisdiction of the court, the proper remedy is not dismissal of the complaint, but, rather, for the court to order that the necessary party be summoned.

146H, LLC v. HSBC Bank USA, N.A., NY Slip Op 02809 (2d Dep't May 6, 2026)

Here is the decision.

Summary judgment

Defendant's assertion that he is entitled to summary judgment because plaintiff did not serve an expert affidavit by the court-ordered deadline constitutes an effort to point out gaps in the plaintiff's proof. Gaps in plaintiff's proof, however, cannot serve as a basis to grant defendant's motion, on which, as the moving party, he bears the burden.

Allen v. Thompson, NY Slip Op 02771 (1st Dep't May 5, 2026)

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Discovery

The reasonable production expenses of a non-party witness are defrayed by the party seeking discovery, pursuant to CPLR 3111, 3122[d].

Matter of Peerenboom v. Marvel Entertainment, LLC, 2026 N.Y. App. Div. LEXIS 2903, 1st Dep't April 30, 2026

Employment law

An employer may be vicariously liable for the torts of its employee acting within the scope of employment, but a claim against the employer does not necessarily preclude a separate claim against the employee. It is immaterial to an agent's liability that the agent's tortious conduct may, additionally, subject the principal to liability. 

Castellazzo v. David's New Beginnings, LLC, 2026 N.Y. App. Div. LEXIS 2818, 2d Dep't April 29, 2026

Injunctive relief

In order to obtain a preliminary injunction, the movant must establish: (1) a likelihood of success on the merits; (2) irreparable injury absent the injunction, and (3) a balancing of the equities in the movant's favor. The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court. Absent unusual or compelling circumstances, appellate courts are reluctant to disturb that determination.

Beckett v. Estate of Thomas Beckett, 2026 N.Y. App. Div. LEXIS 2796, 2d Dep't April 29, 2026

Orders of preclusion

A conditional order of preclusion requires a party to provide specific discovery by a date certain, or incur sanctions. If the party fails to produce the discovery on time, the conditional order becomes absolute.

Bank of Am., N.A. v. Sarwar, NY Slip Op 02621 (2d Dep't April 29, 2026)

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Jurisdictional questions

Pursuant to CPLR 5015(a)(4), "[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person . . . upon the ground of . . . lack of jurisdiction to render the judgment or order." Where a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), and seeks a discretionary vacatur pursuant to CPLR 5015(a)(1), the court must resolve the jurisdictional question before determining whether to grant a discretionary vacatur of the default.

Atlantica, LLC v. Hunte, NY Slip Op 02619 (2d Dep't April 29, 2026)

Here is the decision.

Failure to oppose a motion

In order to vacate a default in opposing a motion pursuant to CPLR 5015(a)(1), the moving party is required to demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion. The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court. Ignorance of the law, failure to retain an attorney, and confusion about the date of a conference do not constitute reasonable excuses.

166 N. 7 St., LLC v. Sung Kyu Khim, NY Slip Op 02617 (2d Dep't April 29, 2026)

Here is the decision.

The admissibility of translations

The proponent of translated evidence has the burden of demonstrating that the translation was provided by a competent, objective interpreter whose translation was accurate. Generally, a certification that the translator is professionally qualified and is competent in both languages is sufficient. Here, however, the translator attestations state only that each translator was fluent in both Spanish and English, with no indication of any other credentials.

Gavilanes v. 919 Ground Lease, LLC, NY Slip Op 02451 (1st Dep't April 23, 2026)

Here is the decision.

Failure to answer or appear

On a motion for leave to enter judgment against a defendant for the failure to answer or appear, a plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defendant's default. In opposition, the defendant must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action.

Goode v. Bespoke Motor Group, LLC, NY Slip Op 02395 (2d Dep't April 22, 2026)

Here is the decision.

Adding a defendant

The relation-back doctrine permits the commencement of claims against a party that has not been timely sued, but which relate back to the original timely complaint. The plaintiff must establish all three prongs of the test for the addition of untimely claims or parties: (1) the new claims arise out of the same conduct, transaction, or occurrence as that alleged in the original complaint; (2) the party to be added must be united in interest with one or more of the original defendants; and (3) the newly-added defendant knew, or should have known, that the action would have been timely commenced against it but for the plaintiff's  mistake as to the identity of the proper parties.

DiMiceli v. Credit Shelter Trust, NY Slip Op 02391 (2d Dep't April 23, 2026)

Here is the decision.