Motions to dismiss

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5), on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired. If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period.

Bass v. Garnet Health Med. Center-Catskills, NY Slip Op 02386 (2d Dep't April 22, 2026)

Here is the decision.

Contract law

Choice of law provisions typically apply only to substantive issues. In the absence of an express intention that a specific statute of limitations is to apply to the dispute, a choice of law provision cannot be read to encompass the limitations period.

Cincinnati Terrace Member LLC v. Tartar Krinsky & Drogin LLC, NY Slip Op 02369 (1st Dep't April 21, 2026)

Here is the decision.

Summary judgment motions

An affidavit submitted in opposition to the motion that merely raises what appear to be feigned issues of fact designed to avoid the consequences of earlier deposition testimony is insufficient to defeat summary judgment.

Brener v. Queens Blvd. Extended Care Facility Corp., NY Slip Op 02240 (2d Dep't April 15, 2026)

Here is the decision.

Appellate practice

Supreme Court effectively granted plaintiff's motion for leave to reargue when it considered the merits of the motion. Therefore, it is reviewable on appeal.

Feifei Gu v. Henry, NY Slip Op 02332 (1st Dep't April 16, 2026)

Here is the decision.

Motions to dismiss

Bare legal conclusions with no factual specificity in the complaint are insufficient to survive a motion to dismiss.

Berl v. CNH Operating, LCC, NY Slip Op 02238 (2d Dep't April 15, 2026)

Here is the decision.

Discovery disputes

The supervision of discovery and the setting of reasonable terms and conditions for disclosure are matters within the sound discretion of the trial court, as is the determination whether to strike a pleading and the nature and degree of any sanction to be imposed.  The striking of a party's pleading is a drastic remedy that is warranted only on a clear showing of a willful and contumacious failure to comply with discovery demands.

American Tr. Ins. Co. v. Hackensack Surgery Ctr., LLC, NY Slip Op 02235 (2d Dep't April 15, 2026)

Here is the decision.

Dismissal on the ground of documentary evidence

Plaintiff seeks to hold defendant liable for allegedly fraudulently inducing it to purchase real property. At the closing, defendant executed a certification concerning six apartments in the property, swearing that "no rent has ever been paid by the occupants" of the apartments, and alleging that the occupants of the apartments "are not tenants." However, schedule 8.1(k) in the closing binder set forth the "actual rents billed by [defendant] to the tenants of the premises."

The complaint is dismissed, pursuant to CPLR 3211[a][1], as the documentary evidence conclusively refutes the cause of action. The parties' purchase and sale agreement contained a merger clause, which incorporated the terms of schedule 8.1(k) into the agreement. Further, plaintiff agreed to purchase the property "as is" and "where is." These terms in the parties' agreement bar plaintiff's claim arising out of reliance on the purported misrepresentations.

ABJ 105, LLC v. Martinez, NY Slip Op 02327 (1st Dep't April 16, 2026)

Here is the decision.

Dismissal as time-barred

Pursuant to CPLR 3211(a)(5), a moving defendant must establish, prima facie, that the time within which to commence an action has expired. On this threshold showing, the burden shifts to the party opposing the motion to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether the action was actually commenced within the limitations period.

Parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations. An agreement which modifies the limitations period by specifying a shorter, but reasonable, period within which to commence an action is enforceable provided it is in writing.

Extech Bldg. Materials, Inc. v. J Cos., LLC, NY Slip Op 01770 (2d Dep't March 25, 2026)

Here is the decision.

Employment law

Under the common-law doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by employees acting within the scope of their employment. The employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment. An employer is not liable for assaults or other criminal acts committed by an employee under the theory of respondeat superior where those acts are not in furtherance of the business or within the scope of the employment.

Doe v. Yeshiva of Brooklyn, NY Slip Op 01769 (2d Dep't March 25, 2026)

Here is the decision.

Service of process

Pursuant to CPLR 306-b, a court may, in the exercise of its discretion, grant an extension of time within which to effect service for good cause shown or in the interest of justice. In order to establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service. The more flexible interest of justice standard accommodates late service that might be due to mistake, confusion, or oversight, as 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 in making its determination, 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.

Deutsche Bank Natl. Trust Co. v. Groder, NY Slip Op 01767 (2d Dep't March 25, 2026)

Here is the decision.

Writs of mandamus

Mandamus does not lie to compel a discretionary act rather than a ministerial one, pursuant to CPLR 7803[1].

Matter of Gomez v. New York City Dept. of Bldgs., NY Slip Op 01915 (1st Dep't March 31, 2026)

Here is the decision.