Contract law.

A so-ordered stipulation is a contract between the parties thereto and, as such, is binding on them and will be construed in accordance with contract principles and the parties' intent. When an agreement between parties is clear and unambiguous on its face, it will be enforced according to its terms and without resort to extrinsic evidence.

Gounder v Melrose Credit Union, NY Slip Op 04766 (2d Dep't August 27, 2025)

Here is the decision.

Vacating a default.

Pursuant to CPLR 5015(a), a party seeking to vacate a default in opposing a motion must offer a reasonable excuse and a potentially meritorious opposition.

Gounder v. Melrose Credit Union, NY Slip Op 04766 (2d Dep't August 27, 2025)

Here is the decision.

Premises liability.

A defendant seeking dismissal on the basis of a trivial defect must make a prima facie showing that the defect is physically insignificant and does not increase any risk it poses. Only then does the burden shift to the plaintiff to establish an issue of fact. The issue of whether a dangerous or defective condition exists depends on the facts of each case and generally is a question of fact for the jury. There is no minimal dimension test or per se rule that the condition must be of a certain height or depth in order to be actionable. In determining whether a defect is trivial, the court must examine the width, depth, elevation, irregularity, and appearance of the defect, as well as the time, place, and circumstance of the injury.

Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable. A defendant may establish, prima facie, that an alleged defect was trivial as a matter of law and, thus, not actionable, even without submitting an objective measurement of the alleged defect's dimensions.  However, a defendant moving for summary judgment who does not submit an objective measurement of the alleged defect has greater difficulty and often fails to demonstrate triviality as a matter of law.

Genutis v. 555 Dekalb Ave., LLC, NY Slip Op 04765 (2d Dep't August 27, 2025)

Here is the decision.

Leave to renew.

A motion for leave to renew must be based on new facts not offered on the prior motion that would change the prior determination, and it must offer reasonable justification for the failure to present the facts on the prior motion, pursuant to CPLR 2221[e][2], [3].  Leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.

Esteban v. Dubuisson, NY Slip Op 04763 (2d Dep't August 27, 2025)

Here is the decision.

Alter ego liability.

In seeking to hold a parent corporation liable for its alter ego's actions, a plaintiff must show that the corporation exercised complete domination and control of the action, and committed a fraud or wrong, causing injury to the plaintiff.

Rich v. J.A. Madison, LLC, NY Slip Op 04818 (1st Dep't August 28, 2025)

Here is the decision.

Sanctions for frivolous conduct.

Pursuant to 22 NYCRR 130-1.1, a court, in its discretion, may impose sanctions against a party for frivolous conduct.  Conduct is considered frivolous if it is completely without merit in law or fact and cannot be supported by a reasonable argument for the extension, modification, or reversal of existing law; undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or asserts material factual statements that are false.

DeSimone v. Northport-East Northport Union Free Sch. Dist., NY Slip Op 04762 (2d Dep't August 27, 2025)

Here is the decision.

Motions to dismiss.

A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's allegations, thereby conclusively establishing a defense as a matter of law. If the evidence submitted in support of the motion is not documentary, the motion must be denied. An affidavit is not documentary evidence because its contents can be controverted by other evidence, such as another affidavit.

Curran v. Village of Amityville, NY Slip Op 04760 (2d Dep't August 27, 2025)

Here is the decision.

Failure to prosecute.

CPLR 3216 permits a court to dismiss a complaint for want of prosecution only after the court or the defendant has served the plaintiff with a written notice demanding that the plaintiff resume prosecution of the action and serve and file a note of issue within 90 days after receipt of the demand, and stating that the failure to comply with the demand will serve as the basis for a motion to dismiss the action. Since CPLR 3216 is a legislative creation and not within a court's inherent power, the failure to serve a written notice that conforms to the provisions of CPLR 3216 is the failure of a condition precedent to dismissal of the complaint.

Terryn v. Rubin, NY Slip Op 04741 (2d Dep't August 20, 2025

Here is the decision.

Contractual indemnification.

A party's right to contractual indemnification depends on the specific language of the contract. A promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement. A party that moves for summary judgment dismissing a claim for contractual indemnification must make a prima facie showing that it was not contractually obligated to indemnify the party asserting the indemnification claim.

Quintero v. 240 Crossways Park Owner, LLC, NY Slip Op 04738 (2d Dep't August 20, 2025)

Here is the decision.

Defamation.

The elements of a cause of action to recover damages for defamation are (1) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (2) published without privilege or authorization to a third party, (3) amounting to fault as judged by, at a minimum, a negligence standard, and (4) either causing special harm or constituting defamation per se. A false statement constitutes defamation per se if it charges another with a serious crime or tends to injure another in its trade, business, or profession.

Absolute privilege attaches to communications of persons participating in a public function, such as judicial, legislative, or executive proceedings. The privilege is based on the personal position or status of the speaker and is limited to the speaker's official participation in the processes of government.

Oxman v. Diana, NY Slip Op 04731 (2d Dep't August 20, 2025)

Here is the decision.

The relation-back doctrine.

The relation-back doctrine allows a party to be added to an action after the expiration of the statute of limitations, and the claim is deemed timely interposed, if (1) the claim arises out of the same conduct, transaction, or occurrence; (2) the additional party is united in interest with the original party; and (3) the additional party knew or should have known that but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against the additional party as well. The linchpin of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period.

Norton v. County of Westchester, NY Slip Op 04729 (2d Dep't August 20, 2025)

Here is the decision.

Landlord-tenant.

A lease provision that the tenant must pay attorneys' fees if it commences an action against a defaulting landlord is unenforceable.

Stromberg v. East Riv. Hous. Corp., NY Slip Op 04757 (1st Dep't August 21, 2025)

Here is the decision.

Default judgments.

A plaintiff seeking leave to enter a default judgment pursuant to CPLR 3215 must submit proof of: (1) service of a copy of the summons and complaint; (2) the facts constituting the claim; and (3) the defendant's default in answering or appearing. When a default judgment based on non-appearance is sought against a defendant corporation that has been served pursuant to Business Corporation Law § 306(b), the plaintiff is required to submit proof of mailing of an additional copy of the summons to the corporation at its last known business address. However, the additional notice requirement does not apply to actions affecting title to real property.

Nationstar Mtge., LLC v. Douge, NY Slip Op 04727 (2d Dep't August 20, 2025)

Here is the decision.

Collateral estoppel.

A litigant seeking the benefit of collateral estoppel must demonstrate that the decisive issue was necessarily decided in the prior action against a party, or one in privity with a party. The party to be precluded from relitigating the issue bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination.

Comalgri Holding Corp. v. SC Crossfit, Inc., NY Slip Op 04625 (2d Dep't August 13, 2025)

Here is the decision.

Attorneys' fees and sanctions.

22 NYCRR 130-1.1(a) authorizes an award of costs or the imposition of sanctions in favor of "any party or attorney" in any civil action or proceeding "before the court." The non-party's motion for attorneys' fees and costs is denied as untimely since it was made after the parties had executed a stipulation to discontinue the action.

Baugh v. Seagull 27, LLC, NY Slip Op 04620 (2d Dep't August 13, 2025)

Here is the decision.

Subject matter jurisdiction.

 A court's lack of subject matter jurisdiction is not waivable.

Kaius A. v. Abigail H., NY Slip Op 04692 (1st Dep't August 14, 2025)

Here is the decision.

Defective Service: CPLR 2001.

CPLR 2001 may not be used to disregard the plaintiff's failure to properly serve the defendants with process. The court's application of CPLR 2001 presupposes that the court has acquired jurisdiction. Thus, CPLR 2001 may be used to cure only a technical infirmity in service. In deciding whether a defect in service is merely technical, courts must be guided by the principle of notice, that is, whether service is reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Defendant's actual receipt of process is not dispositive of the efficacy of service.

Baptiste v. County of Suffolk, NY Slip Op 04618 (2d Dep't August 13, 2025)

Here is the decision.

Service of process.

The defendant waived the defense of lack of personal jurisdiction on the basis of improper service by failing to move for judgment on that ground within 60 days after serving his answer and otherwise failed to show undue hardship, pursuant to CPLR 3211[e]. Although the statute was amended to provide that the rule requiring the defendant to move for judgment within 60 days "shall not apply in any proceeding to collect a debt arising out of a consumer credit transaction where a consumer is a defendant," the amendment was not in effect at the time this action was commenced, and the defendant does not contend that the amendment should apply retroactively. In any event, the defendant failed to rebut the presumption of proper service created by the process server's affidavit.

Bank of Am., N.A. v. McKeon, NY Slip Op 04617 (2d Dep't August 13, 2025)

Here is the decision.

Filing a referee's report.

The referee's failure to file a report within 60 days of the order of reference was a mere irregularity that the Supreme Court properly disregarded, pursuant to CPLR 2001, 2004.

Bank of Am., N.A. v. ABC Realty Holdings, Inc., NY Slip Op 04616 (2d Dep't August 13, 2025)

Here is the decision.

Summary judgment.

The court may grant a motion for summary judgment before discovery is completed. To defeat the motion as premature, the opposing party must provide an evidentiary basis to suggest that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were in the exclusive knowledge and control of the moving party. The mere hope or speculation that evidence sufficient to defeat the motion may be uncovered with additional discovery is insufficient to deny the motion.

AccessLex Inst. v. Clunis, NY Slip Op 04613 (2d Dep't August 13, 2025)

Here is the decision.

Leave to renew.

Leave to renew ordinarily requires diligent efforts to obtain the evidence now relied on and a reasonable justification for not submitting the evidence in the prior motion, pursuant to CPLR 2221[e][2], [3]. Courts also may grant the motion in the interest of justice, so as not to defeat substantive fairness.

Forbes v. City of New York, NY Slip Op 04608 (1st Dep't August 7, 2025)

Here is the decision.

Appellate practice.

The Appellate Division declines to reach an issue that the appellant did not raise before the motion court and that is not a purely legal argument apparent on the face of the record.

Victor v. Khatskevich, NY Slip Op 04610 (1st Dep't August 7, 2025)

Here is the decision.

Contract law.

There is a "mere continuation" exception to the rule against successor liability on a contract claim. While no one factor is dispositive, courts determining whether a successor corporation is a mere continuation of its predecessor have considered whether: (1) all or substantially all assets are transferred to the successor corporation; (2) the predecessor corporation has been effectively extinguished following the transaction; (3) the successor has assumed an identical or nearly identical name; (4) the successor has retained one or more of the same corporate officers, directors, and/or employees; and (5) the successor has continued the same business.

Avamer 57 Fee LLC v. Hunter Boot USA LLC, NY Slip Op 04607 (1st Dep't August 7, 2025)

Here is the decision.

Negligent misrepresentation.

In order to state a cause of action for negligent misrepresentation, a plaintiff must allege: (1) a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect or withheld; and (3) reasonable reliance on the information or the omission. A conventional business relationship, without more, is insufficient to create a fiduciary relationship. A plaintiff must make a showing of special circumstances that transformed the business relationship to a fiduciary one, such as control by one party of the other for the good of the other.

Away Envtl., Inc. v. Town of Clarkstown, NY Slip Op 04535 (2d Dep't August 6, 2025)

Here is the decision.

Landlord-Tenant.

A residential lease that obligates a tenant to indemnify a landlord for the landlord's own negligence is unenforceable as against public policy. However, in a commercial lease, negotiated between two sophisticated parties, the lessor and lessee may freely enter into an agreement whereby they use insurance to allocate between themselves the risk of liability to third parties.

Arnold v. RJJR Corp., NY Slip Op 04534 (2d Dep't August 6, 2025)

Here is the decision.

Third-party claims.

Impleader is available even if the impleaded party owes no duty to the primary plaintiff, provided that the third-party claim is sufficiently related to the main action to at least raise the question of whether the third-party defendant may be liable to defendant-third-party plaintiff, for whatever reason, for the damages for which the latter may be liable to plaintiff.

A Real Advantage, Inc. v. Renu Constr. & Restoration, Inc., NY Slip Op 04531 (2d Dep't August 6, 2025)

Here is the decision.

So-ordered stipulations.

A so-ordered stipulation is a binding contract that will be construed according to contract principles. As in the interpretation of any contract, the instrument must be read as a whole to determine the parties' purpose and intent, giving a practical interpretation to the language employed so that the parties' reasonable expectations are realized.

A Real Advantage, Inc. v. Renu Contr. & Restoration, Inc., NY Slip Op 04531 (2d Dep't August 6, 2025)

Here is the decision.

Limitations periods.

Contracting parties 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. If it is in writing, the agreement is enforceable, absent proof that it is an adhesion contract or the product of overreaching.

95 Crescent, LLC v. Certified Restoration Servs., Inc., NY Slip Op 04530 (2d Dep't August 6, 2025)

Here is the decision.

Contract law.

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 assumes a duty of care and may be 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.

Bell v. Bollenbach & House, Inc., NY Slip Op 04453 (2d Dep't July 30, 2025)

Here is the decision.

Discovery.

CPLR 3101(a) broadly mandates full disclosure of all matter material and necessary in the prosecution or defense of an action. However, the court, sua sponte or on motion, may issue a protective order denying, limiting, conditioning, or regulating the use of any disclosure device. A party seeking a protective order must make a factual showing of unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice. The Supreme Court may issue a protective order precluding disclosure that is palpably improper in that it seeks irrelevant and/or confidential information, or is overly broad and burdensome. Although trial courts are vested with broad discretion to issue appropriate protective orders to limit discovery, that discretion must be exercised with the competing interests of the parties and the truth-finding goal of the discovery process in mind.

G.B. v. Equinox Holdings, Inc., NY Slip Op 04452 (2d Dep't July 30, 2025)

Here is the decision.

Negligence actions.

A defendant who moves for summary judgment in a negligence action has the burden of establishing, prima facie, that he was not at fault in the happening of the accident.

Almonte v. First Student, Inc., NY Slip Op 04450 (2d Dep't July 30, 2025)

Here is the decision.

Motions to dismiss.

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law. In order to be considered documentary, the evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable. Affidavits, deposition testimony, and letters are not considered documentary evidence within the meaning of CPLR 3211(a)(1).

All Nations Steel Corp. v. KSK Constr. Group, LLC, NY Slip Op 04449 (2d Dep't July 30, 2025)

Here is the decision.

Submissions without leave.

The court may refuse to consider a party's supplemental submissions offered, without leave, on its own initiative. A party does not have license to submit its proofs whenever it pleases.

Valley Natl. Bank v. 252 W. 31 St. Corp., NY Slip Op 04528 (1st Dep't July 31, 2025)

Here is the decision.

Discovery.

Parties are entitled to disclosure of all matter material and necessary to prosecution of the action. Any matter which may lead to admissible proof is discoverable, as is any matter which bears upon a defense, even if the facts themselves are not admissible. The test is one of usefulness and reason. A party asserting that material sought in disclosure is privileged bears the burden of demonstrating that the material it seeks to withhold is immune from discovery. Personnel records are discoverable where the plaintiff alleges a cause of action to recover damages for negligent hiring, retention, or supervision.

S.E. v. Diocese of Brooklyn, NY Slip Op 04228 (2d Dep't July 23, 2025)

Here is the decision.

Service of process.

The court does not have personal jurisdiction over a defendant when a plaintiff fails to properly effectuate service of process. Where process has not been served upon a defendant, all subsequent proceedings will be rendered null and void. Service upon a natural person must be made in strict compliance with CPLR 308. 

CPLR 308(2) provides that personal service upon a natural person may be made by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place, or usual place of abode of the person to be served, and by mailing the summons to the person to be served at his last known residence. Service is invalid if the service address is not, in fact, the defendant's actual place of business, dwelling place, or usual place of abode.

A process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service. Bare and unsubstantiated denials are insufficient to rebut the presumption of service, but a sworn denial of service containing specific facts rebuts the presumption established by the affidavit of service and necessitates a hearing.

Citimortgage, Inc. v. Ramcharran, NY Slip Op 04227 (2d Dep't July 23, 2025)

Here is the decision.

Motions to dismiss.

Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed based upon another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same.

Busiello v. Whelan, NY Slip Op 04226 (2d Dep't July 23, 2025)

Here is the decision.

Vacating a default.

A defendant seeking to vacate a default in answering or appearing pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action. The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court. Here, the Supreme Court providently exercised its discretion in determining that the defendant failed to demonstrate a reasonable excuse for his default in answering the complaint or appearing in the action. The conclusory and unsubstantiated claim that he was hampered by the restrictions imposed in response to the COVID-19 pandemic does not amount to a reasonable excuse. Further, he failed to establish a reasonable excuse for the lengthy delay in moving to vacate the judgment. Since the defendant failed to establish a reasonable excuse for the default, it is unnecessary to determine whether he demonstrated a potentially meritorious defense to the action.

Asian Holdings Corp. v. Schiff, NY Slip Op 04225 (2d Dep't July 23, 2025)

Here is the decision.

Real estate commissions.

In order to prevail on a cause of action to recover a commission, the broker must establish (1) that it is duly licensed, (2) that it had a contract, express or implied, with the party to be charged with paying the commission, and (3) that it was the procuring cause of the sale. However, there is a distinction between brokerage agreements granting an exclusive agency and those conferring an exclusive right to sell, the latter of which permits a broker to recover a commission even if it was not the procuring cause of the transaction.

Angelic Real Estate, LLC v. Aurora Props., LLC, NY Slip Op 04223 (2d Dep't July 23, 2025)

Here is the decision.

Appellate practice.

The matter of defense counsel's summation describing the plaintiff as inattentive and aggressive before the accident is unpreserved for appellate review. Plaintiff's counsel failed to object to these comments at trial, did not request a curative instruction, and did not move for a mistrial on this ground.

Abdenbi v. Walgreen Co., NY Slip Op 04222 (2d Dep't July 23, 2025)

Here is the decision.

Res judicata.

When a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.

Yu Chan Li v. City of New York, NY Slip Op 04275 (2d Dep't July 23, 2025)

Here is the decision.

Service of process.

Service pursuant to CPLR 308(4) may be effected by affixing the summons to the door of either the actual place of business, dwelling place, or usual place of abode within the state of the person to be served and by either mailing the summons to the person at his last known residence or by mailing the summons by first class mail to the person to be served at his actual place of business. Service pursuant to CPLR 308(4) may be used only where personal service under CPLR 308(1) and (2) cannot be made with due diligence. Due diligence is not defined by statute but it has been interpreted and applied to require a few visits on different occasions and at different times to the defendant's residence or place of business when the defendant could reasonably be expected to be found there.

PNMAC Mtge. Opportunity Fund Invs., LLC v. Noushad, NY Slip Op 04195 (2d Dep't July 16, 2025)

Here is the decision.

Guaranty Law.

The absolute and unconditional guaranty was separate and distinct from the underlying lease and, therefore, constituted an independent agreement that imposed on the defendant a direct and primary obligation of payment. New York courts have routinely upheld such guaranties.

Queens Syndicate Co. v. Daniarov, NY Slip Op 04196 (2d Dep't July 16, 2025)

Here is the decision.

Motions to intervene.

On a timely motion, a party may intervene as of right in an action involving the disposition of property where the moving party may be adversely affected by the judgment, pursuant to CPLR 1012[a][3].  In determining whether the motion is timely, a court will consider the time between the proposed intervenor's knowledge of the basis for the motion and the making of the motion, and whether any delay in seeking intervention is prejudicial to a party.

U.S. Bank, N.A. v. Severe, NY Slip Op 04198 (2d Dep't July 16, 2025)

Here is the decision.

90-day demands.

Where a defendant serves a 90-day demand pursuant to CPLR 3216(b)(3), the plaintiff must comply with the demand by filing a note of issue or by moving, before the default date, either to vacate the demand or to extend the 90-day demand period. Here, the plaintiff did neither. Therefore, in opposition to the defendant's motion to dismiss the complaint, the plaintiff was required to demonstrate a justifiable excuse for the failure to timely abide by the 90-day demands, as well as the existence of a potentially meritorious cause of action, pursuant to CPLR 3216[e].

Wells Fargo Bank, N.A. v. Moran, NY Slip Op 04199 (2d Dep't July 16, 2025)

Here is the decision.

Constructive trusts.

The elements of a constructive trust are a fiduciary or confidential relationship, a promise, a transfer in reliance on that promise, and unjust enrichment. The transfer element extends to instances where funds, time and effort were contributed in reliance on a promise to share in the result. A party with no actual prior interest in the property must show that an equitable interest developed through the expenditure of money, labor, and time in the property.

Angel v. Struvolich, NY Slip Op 04149 (2d Dep't July 16, 2025)

Here is the decision.

Appellate practice.

Guaranty law.

Generally, a guaranty is an instrument that qualifies for relief pursuant to a motion for summary judgment in lieu of a complaint under CPLR 3213.  In order to meet its prima facie burden on the motion, a plaintiff must prove the existence of the guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty.

Pearl Riv. Campus, LLC v. ReadyScrip, LLC, NY Slip Op 04101 (2d Dep't July 9, 2025)

Here is the decision.

Collateral estoppel.

The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action and decided against that party or those in privity, regardless of whether the tribunals or causes of action are the same. The party seeking to invoke the doctrine has the burden to show the identity of the issues, while the party trying to avoid application of the doctrine must establish the lack of a full and fair opportunity to litigate. The doctrine is based on principles of fairness and the facts and practical realities of a particular litigation, rather than rigid rules. A court's dicta is not subject to the preclusive effect of the doctrine of collateral estoppel.

Quiogue Prop. Mgt., LLC v. Torres, NY Slip Op 04115 (2d Dep't July 9, 2025)

Here is the decision.

Notices of pendency.

Since the defendant's motion to dismiss the complaint was granted, that branch of the motion which was to cancel the notice of pendency is granted as well.

Bank v. Guzzetti, NY Slip Op 04116 (2d Dep't July 9, 2025)

Here is the decision.

Service of process.

Service of process under CPLR 308(2) requires that the summons be delivered within the state to a person of suitable age and discretion at the defendant's "actual place of business, dwelling place or usual place of abode," along with a mailing of the summons to the defendant's last known residence or actual place of business. Personal jurisdiction is not acquired absent compliance with both the delivery and mailing requirements of the statute.  At a hearing to determine the validity of service, the burden of proving personal jurisdiction is on the party asserting it, and that party must sustain that burden by a preponderance of the credible evidence. Credibility determinations rendered by the Supreme Court as to the witnesses who have testified are entitled to great deference on appeal.

Rhoe v. Reid, NY Slip Op 04117 (2d Dep't July 9, 2025)

Here is the decision.

Rear-end collisions.

A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision.  A non-negligent explanation may include evidence of a mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on wet pavement, or any other reasonable cause. 

Torres v. New York City Tr. Auth., NY Slip Op 04120 (2d Dep't July 9, 2025)

Here is the decision.

Proximate cause.

Generally,  the proximate cause of an accident is for the jury to decide, but it may be decided as a matter of law where only one conclusion may be drawn from the facts. Liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes.

Brinkley v. STD Trucking Corp., NY Slip Op 04080 (2d Dep't July 9, 2025) 

Here is the decision.

Motion practice.

Where the defendant fails to establish its prima facie entitlement to judgment as a matter of law, the motion court will not consider the sufficiency of the plaintiffs' opposition papers.

Acosta v. Shanahan Group, LLC, NY Slip Op 04077 (2d Dep't July 9, 2025)

Here is the decision.

Contract law.

The essential elements of a breach of contract cause of action are the existence of a contract, the plaintiff's performance under the contract, the defendant's breach of that contract, and resulting damages. In order to state a cause of action, the plaintiff's allegations must identify the provisions of the contract that were breached. Where the contract is before the court, its provisions establish the rights of the parties and prevail over conclusory allegations of the complaint.

7 Leaf Compounds, LLC v. Pearl Riv. Campus, LLC, NY Slip Op 04076 (2d Dep't July 9, 2025)

Here is the decision.

Leave to amend.

Leave to amend a pleading should be granted where the amendment is neither palpably insufficient nor patently devoid of merit and the delay in seeking amendment does not prejudice or surprise the opposing party. 

7 Leaf Compounds, LLC v. Pearl Riv. Campus, LLC, NY Slip Op 04076 (2d Dep't July 9, 2025)

Here is the decision.

Appellate practice.

A party who seeks to appeal a sua sponte order should first move to vacate the order in order to create a suitable appellate record and afford counsel the opportunity to be heard on the issues, pursuant to CPLR 5701[a][3].

Klein v. New York City Tr. Auth., NY Slip Op 04147 (1st Dep't July 10, 2025)

Here is the decision.

Estoppel.

Equitable estoppel precludes a defendant from using the statute of limitations as a defense where it is the defendant's affirmative wrongdoing which produced the long delay between the accrual of the cause of action and the institution of the legal proceeding. Invoking the doctrine of equitable estoppel requires a showing that the defendant's actions prevented timely commencement of the suit

Robinson v. Jamaica Hosp. Med. Ctr., NY Slip Op 04030 (2d Dep't July 2, 2025)

Here is the decision.

Restoring a case to the calendar.

Plaintiff's motion to restore the action to the active calendar is granted. The action was never formally dismissed, as no order was issued directing dismissal of the action under 22 NYCRR 202.27. Accordingly, restoring a case marked inactive is automatic, and plaintiff was not required to establish a reasonable excuse for failing to appear at the status conference.

Simon v. Bryski, NY Slip Op 04033 (2d Dep't July 2, 2025)

Here is the decision.

Foreclosure actions.

An action to foreclose a mortgage is subject to a six-year statute of limitations. When a mortgage is payable in installments, which is the typical practice, an acceleration of the entire amount due begins the running of the statute of limitation on the entire debt. One of the ways to accelerate a mortgage debt is through commencement of a foreclosure action in which the verified complaint includes an election to exercise the mortgagor's contractual right to accelerate under the terms of the note and mortgage. The fact of election should not be confused with the notice of the election. While the act evincing the noteholder's election must be sufficient to constitute notice to all third parties of such a choice, a borrower's lack of actual notice does not, as a matter of law, destroy the effect of the election. Put another way, the point at which a borrower has actual notice of an election to accelerate is not the operative event for purposes of determining when the statute of limitations begins to run. The dispositive question is whether the contractual election was effectively invoked.

Wilmington Sav. Fund Socy., FSB v. Avenue Basin Mgt., Inc., NY Slip Op 04039 (2d Dep't July 2, 2025)

Here is the decision.

Standing.

Only a trustee, as opposed to the trust, may file suit.

J. Carey Smith 2019 Irrevocable Trust v. 11 W. 12 Realty, LLC, NY Slip Op 04045 (1st Dep't July 3, 2025)

Here is the decision.

Motions to dismiss.

A motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, resolves all factual issues as a matter of law, and conclusively disposes of the claims at issue. In order to be credited, the evidence submitted in support of a CPLR 3211(a)(1) motion must be unambiguous, authentic, and undeniable.

Arkin, Simon & Simon Partnership v. Rockaway Crossing, LLC, NY Slip Op 03990 (2d Dep't July 2, 2025)

Here is the decision.

Arbitration.

The court will not intervene where there is an arbitration clause in which the parties agree to rules under which the arbitrator decides arbitrability.

Ghatak v. McKinsey & Co., NY Slip Op 04044 (1st Dep't July 3, 2025)

Here is the decision.

Court holiday.

Contract law.

Expert witnesses may not opine as to the parties' legal obligations under a contract; that is an issue for the trial court to decide.

Ametek, Inc. v. Goldfarb, NY Slip Op 03966 (1st Dep't July 1, 2025)

Here is the decision.

Service of process.

Pursuant to CPLR 2101(f), "[t]he party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within fifteen days after the receipt thereof, the party on whom the paper is served returns the paper to the party serving it with a statement of particular objections." 

Globalized Realty Group, LLC v. Crossroad Realty NY, LLC, NY Slip Op 03797 (2d Dep't June 25, 2025)

Here is the decision.

Bench trials.

A judgment from a non-jury trial should be set aside only where it is not supported by any fair interpretation of the evidence.

American Infertility of N.Y., P.C. v. Kushnir, NY Slip Op 03858 (1st Dep't June 26, 2025)

Here is the decision.

Contract law.

In order to prevail on a cause of action for specific performance of a contract for the sale of real property, a plaintiff-purchaser must establish that it substantially performed its contractual obligations and was ready, willing, and able to perform its remaining obligations, that the vendor was able to convey the property, and that there was no adequate remedy at law.  The plaintiff-purchaser must submit evidence of the financial ability to purchase the property in order to satisfy the ready-willing-able element. Where the contract does not make time of the essence, the law permits a reasonable time in which to tender performance, regardless of whether the contract designates a specific date for performance.

Guzman v. Ramos, NY Slip Op 03798 (2d Dep't June 25, 2025)

Here is the decision.

Leave to renew.

A motion for leave to renew is the appropriate vehicle for seeking relief from a prior order based on a change in the law. A clarification of existing law may constitute a change in law for purposes of a motion for leave to renew.

HSBC Bank USA, N.A. v. Ishmail, NY Slip Op 03799 (2d Dep't June 25, 2025)

Here is the decision.

Defamation.

The elements of a cause of action alleging defamation are (a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se.  Since falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action.

Moonbeam Gateway Mar., LLC v. Tai Chan, NY Slip Op 03802 (2d Dep't June 25, 2025)

Here is the decision.

Motions to reargue.

Even where a motion for reargument is untimely under CPLR 2221(d)(3), a court has discretion to reconsider its prior ruling.

JPMorgan Chase Bank, N.A. v. Stern, NY Slip Op 03800 (2d Dep't June 25, 2025)

Here is the decision.

Temporary restraining orders.

A temporary restraining order will not issue where the alleged injury is fully compensable in money damages.

Arena Ltd. SPV, LLC v. Chalets, LLC, NY Slip Op 03759 (1st Dep't June 24, 2025)

Here is the decision.

Indemnification.

The right to contractual indemnification depends upon the specific language of the contract. 

Collado v. Port Auth. of N.Y. & N.J. (2d Dep't June 18, 2025)

Here is the decision.

The law of the case.

The law of the case doctrine applies only to legal determinations that were necessarily resolved on the merits in a prior decision and to the same questions presented in the same case.

Deutsche Bank Nat'l Trust Co. v. Bruno, NY Slip Op 03706 (2d Dep't June 18, 2025)

Here is the decision.

Contract law.

A simple breach of contract may not be considered a tort absent the violation of a legal duty independent of the contract itself. Where the alleged damages were clearly within the contemplation of the written agreement, merely charging a breach of a duty of due care, employing the language of tort law, does not transform a simple breach of contract into a tort claim.

E.W. Howell Co., LLC v. Control Point Assoc., Inc., NY Slip 03708 (2d Dep't June 18, 2025)

Here is the decision.

A bank's liability.

As a general rule, banks do not owe non-customers a duty to protect them from the intentional torts of their customers.

JPMorgan Chase Bank, N.A. v. Canova, NY Slip Op 03719 (2d Dep't June 18, 2025)

Here is the decision.

Corporate law.

The general rule is that a corporation which acquires the assets of another is not liable for the torts of its predecessor. An exception to the rule is the de facto merger doctrine in which the corporation is shorn of its assets and becomes, in essence, a shell.  Legal dissolution is not necessary in order to invoke the doctrine.

One River Run Acquisition, LLC v. Milde, NY Slip Op 03653 (1st Dep't June 17, 2025)

Here is the decision.

Negligence actions.

In a negligence action, a plaintiff moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries. The plaintiff does not have the burden of establishing the absence of his own comparative negligence. However, the issue of the plaintiff's comparative negligence may be decided on summary judgment where the plaintiff seeks dismissal of an affirmative defense alleging comparative negligence.

Jean-Pierre v. Wang Chiang Ho, NY Slip Op 03709 (2d Dep't June 18, 2025)

Here is the decision.

The affirmative defenses of waiver and equitable estoppel.

Mere silence or oversight does not constitute the requisite clear manifestation of an intent to relinquish a known right. The waiver defense is dismissed. The estoppel defense also is dismissed as there was an express contract governing the matter.

Board of Mgrs. of the Alfred Condominium v. Miller, NY Slip Op 03647 (1st Dep't June 17, 2025)

Here is the decision.

A referee's report.

The report of a referee should be confirmed whenever the findings are substantially supported by the record and the referee has clearly defined the issues and resolved matters of credibility. The referee's findings and recommendations are advisory only and have no binding effect on the court, which remains the ultimate arbiter of the dispute.

Wilmington Sav. Fund Socy., FSB. v. Blick, NY Slip Op 03601 (2d Dep't June 11, 2025)

Here is the decision.

Motions to dismiss.

The motion to dismiss the complaint as abandoned under CPLR 3215(c) is untimely when it is made after the entry of a judgment of foreclosure and sale.

HSBC Bank USA v. Amponsah, NY Slip Op 03631 (1st Dep't June 12, 2025)

Here is the decision.

An attorney's liability.

Absent a showing of fraud, collusion, or a malicious or tortious act, an attorney is not liable to third parties for purported injuries caused by services performed on behalf of a client or advice offered to that client.

Garanin v. Hiatt, NY Slip Op 03555 (2d Dep't June 11, 2025)

Here is the decision.

Contract law.

Unjust enrichment is a quasi-contract claim that does not lie where there is an actual agreement between the parties.

Ceratosaurus Invs., LLC v. B2C Alternative Equity, LLC, NY Slip Op 03630 (1st Dep't June 12, 2025)

Here is the decision.

Continental Army 1775.

Foreclosure actions.

An action to foreclose a mortgage is governed by a six-year statute of limitations, pursuant to CPLR 213[4]. Here, the mortgage debt was accelerated and the statute of limitations began to run when the prior foreclosure action was commenced and the entire amount secured by the mortgage was called due. Pursuant to CPLR 3217(e), the voluntary discontinuance of the prior action did not serve to revive or reset the statute of limitations.

Deutsche Bank Natl. Trust Co. v. Williams, NY Slip Op 03552 (2d Dep't June 11, 2025)

Here is the decision.

Appellate practice.

Where an appeal is perfected by the appendix method, the appendix must contain all the relevant portions of the record in order to enable the court to render an informed decision on the merits of the appeal, pursuant to CPLR 5528[a][5] and 22 NYCRR 1250.7[d][1]. Here, the appendix does not include the complete transcript of the hearing held before the Supreme Court. The appeal is dismissed.

Connolly v. Nina, NY Slip Op 03551 (2d Dep't June 11, 2025)

Here is the decision.

The MTA's liability

It is well settled, as a matter of law, that the MTA's functions regarding public transportation are limited to financing and planning, and do not include the operation, maintenance, and control of any facility. The MTA is not vicariously liable for the torts of its subsidiaries such as MTA Bus Company.  The MTA and its subsidiaries are not responsible for each other's torts, and they must be sued separately.

Chen v. Metropolitan Tr. Auth., NY Slip Op 03301 (2d Dep't June 4, 2025)

Here is the decision.

Easements.

An express grant of easement is not extinguished merely because the necessity for the easement ceases, or through mere non-use. Once an easement is created by grant, it can be extinguished only by abandonment, conveyance, condemnation, or adverse possession. In order to prove abandonment, there must be both the intention to abandon and also some overt act or failure to act which implies that the owner neither claims nor retains any interest in the easement. The acts relied upon must be unequivocal, and must clearly demonstrate the owner's intention to permanently relinquish all rights to the easement.

Carp v. Shapiro, NY Slip Op 03300 (2d Dep't June 4, 2025)

Here is the decision.

Contract law.

Clear, complete, and unambiguous contractual terms are to be enforced according to their plain meaning. A determination of unconscionability requires a showing that the contract, when made, was both procedurally and substantively unconscionable. Equity will not relieve a party of its obligations under a contract merely because subsequently, with the benefit of hindsight, it appears to have been a bad bargain.

McCann v. Ship Wrecked Bar & Grill, Inc., NY Slip Op 03388 (1st Dep't June 5, 2025) 

Here is the decision.

Death of a party.

Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a personal representative for the decedent. However, where a party's death does not affect the merits of a case, there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution.

Bethpage Fed. Credit Union v. Hughes, NY Slip Op 03298 (2d Dep't June 4, 2025)

Here is the decision.

Trial by a referee.

Under CPLR 4319, a referee's decision on a reference to hear and determine "shall stand as the decision of a court."

Real World Holdings, LLC v. 393 W. Broadway Corp., NY Slip Op 03394 (1st Dep't June 5, 2025)

Here is the decision.

1944.

Amended complaints.

Once the plaintiff served the amended complaint, the original complaint was superseded, and the amended complaint became the only complaint in the action. The court must proceed as though the original pleading had never been served.

Zaiger, LLC v. Bucher Law, PLLC, NY Slip Op 03268 (1st Dep't May 28, 2025)

Here is the decision.

Damages for emotional distress.

Plaintiff's claim for damages due to emotional distress is not defeated by the absence of psychiatric or other medical treatment.

Theroux v. Resnicow, NY Slip Op 03292 (1st Dep't June 3, 2025)

Here is the decision.

Employment Law.

A plaintiff alleging discrimination under the New York State Human Rights Law must establish: (1) membership in a protected class; (2) qualification to hold the position; (3) an adverse employment action; and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination. A plaintiff may raise such an inference by showing less favorable treatment by comparison to similarly situated employees outside the protected group. The "similarly situated" standard does not require identical circumstances, but the circumstances must be similar in significant respects.

Castro v. City Univ. of N.Y., NY Slip Op 03175 (2d Dep't May 28, 2025)

Here is the decision.

Summary Judgment.

A motion for summary judgment may not be made before issue is joined and the requirement is strictly adhered to.

Brooklyn Bound Realty Corp. v. Charles, NY Slip Op 03174 (2d Dep't May 28, 2025)

Here is the decision.

Motions to dismiss.

Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law. Affidavits, emails, and letters are not considered documentary evidence within the meaning of CPLR 3211(a)(1).

Bernstein v. Jacobson, NY Slip Op 03173 (2d Dep't May 28, 2025)

Here is the decision.

Motions to dismiss.

The single motion rule does not bar a defendant from moving to dismiss the new claim asserted in the amended complaint.

Zaiger, LLC v. Bucher Law, PLLC, NY Slip Op 03268 (1st Dep't May 29, 2025)

Here is the decision.

Service.

Any purported error in the service of the amended pleading upon was not jurisdictional in nature and, in the absence of any apparent prejudice to the defendant, can and should be ignored by the court, pursuant to  CPLR 3012[a].

399 Broadway Holdings, LLC v. Das, NY Slip Op 03172 (2d Dep't May 28, 2025)

Here is the decision.

Foreclosure.

An action to foreclose a mortgage is governed by a six-year statute of limitations, pursuant to CPLR 213[4]. Even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the statute of limitations begins to run on the entire debt. Acceleration occurs by the commencement of a foreclosure action wherein the holder of the note elects in the complaint to call due the entire amount secured by the mortgage.

Deutsche Bank Nat'l Trust Co. v. Sylvestre, NY Slip Op 03039 (2d Dep't May 21, 2025)

Here is the decision.

Contract law.

Expectation damages is the general measure of damages in a breach of contract case under New York law.

Telefonico S.A. v. Millicom Intl. Cellular S.A., NY Slip Op 03153 (1st Dep't May 22, 2025)

Here is the decision.

Vacating a default.

A defendant seeking to vacate a default and to compel the plaintiff to accept an untimely answer must show both a reasonable excuse for the default and the existence of a potentially meritorious defense. The determination of what constitutes a reasonable excuse lies within the trial court's discretion.

Here, service was made by delivering copies of the summons and complaint to the Secretary of State, and evidence in admissible form from the defendant's affidavit established that the default was caused by the Secretary of State's delay in forwarding the copies of the summons and complaint to the defendants. The Secretary of State's delay in forwarding the papers is a reasonable excuse for the default.

BJ Integra Affordable, LLC v. Vanmew,Hous. Dev. Fund Corp.,  NY Slip Op 03035 (2d Dep't May 21, 2025)

Here is the decision.

Memorial Day.

Memorial Weekend.

Memorial Weekend.

Memorial Weekend.

Failure to plead.

Parties must plead all matters which if not pleaded would take the adverse party by surprise or would raise an issue of fact not appearing on the face of a prior pleading, pursuant to CPLR 3018[b].  The failure to plead a defense that must be pleaded affirmatively under CPLR 3018(b) is a waiver of that defense.  However, an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party. The burden of demonstrating prejudice or surprise is on the party opposing the motion.

Babakhanov v Diaz Austin Assoc., L.P., NY Slip Op 03032 (2d Dep't May 21, 2025)

Here is the decision.

Contract law.

Only a stranger to the contract can be liable for tortious interference with a contract.

Beast Invs. LLC  v. Celebrity Virtual Dining, LLC, NY Slip Op 03012 (1st Dep't May 20, 2025)

Here is the decision.

Actions to quiet title.

CPLR 212(a) provides that "[a]n action to recover real property or its possession cannot be commenced unless the plaintiff, or his predecessor in interest, was seized or possessed of the premises within ten years before the commencement of the action." However, CPLR 212 (a) must be read together with RPAPL 311, which provides that "the person who establishes a legal title to the premises is presumed to have been possessed thereof within the time required by law; and the occupation of the premises by another person is deemed to have been under and in subordination to the legal title unless the premises have been held and possessed adversely to the legal title for ten years before the commencement of the action."

Canty v. Burns, NY Slip Op 02903 (2d Dep't May 14, 2025)

Here is the decision.

Vacatur.

A party is precluded from moving to vacate a default on grounds asserted in a prior motion to vacate that had been previously denied in an order from which that party took no appeal or on grounds that were apparent at the time that the party made the prior motion but were not asserted therein.

Bank of Am., N.A. v. Farkas, NY Slip Op 02900 (2d Dep't May 14, 2025)

Here is the decision.

Motions to dismiss.

Under CPLR 3211(a)(1), dismissal is warranted only if the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law. In order to be considered documentary, the evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable. Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, qualify as documentary evidence. However, affidavits and letters are not documentary evidence.

On a motion pursuant to CPLR 3211(a)(7), the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. The motion must be denied unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it.

Atlasman v. Korol, NY Slip Op 02898 (2d Dep't May 14, 2025)

Here is the decision.

Jurisdiction in equity.

A court will not exercise jurisdiction in equity where there is an adequate remedy at law.

Aerogen, LLC v. Tapjets Holdings, Inc., NY Slip Op 02990 (1st Dep't May 15, 2025)

Here is the decision.

Leave to amend.

Leave to amend a pleading under CPLR 3025(b) should be freely granted unless the proposed amendment would unfairly prejudice or surprise the opposing party, or is palpably insufficient or patently devoid of merit. A determination whether to grant leave is within the Supreme Court's broad discretion, and the exercise of that discretion will not be lightly disturbed on appeal. In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion is predicated and whether there is a reasonable excuse for the delay.

Askari v. McDermott, Will & Emery, LLP, NY Slip Op 02897 (2d Dep't May 14, 2025)

Here is the decision.

Contract law.

The parties do not have to wait until the summary judgment stage for a court to interpret a contract as courts routinely interpret contracts on CPLR 3211(a)(7) motions.

South32 Chile Copper Holdings Pty Ltd v. Sumitomo Metal Min. Co., Ltd., NY Slip Op 02892 (1st Dep't May 13, 2025)

Here is the decision.

Landlord-tenant.

Where the original lease includes an option to renew, the tenant's exercise of it does not create a new lease; rather, it is a prolongation of the original agreement for a further period.

3604 Jerome, LLC v. NYC Health & Hosps. Corp., NY Slip Op 02864 (1st Dep't May 13, 2025)

Here is the decision.

Premises liability.

Liability for a dangerous condition on real property must be predicated on ownership, occupancy, control, or special use of the property, any one of which is sufficient to give rise to a duty of care. In the absence of one of these predicates, a party cannot be held liable for injuries caused by the dangerous or defective condition of the property.

Annabi v. BJ's Wholesale Club, Inc., NY Slip Op 02751 (2d Dep't May 7, 2025)

Here is the decision.

Summary judgment in lieu of complaint.

Plaintiff established prima facie that the parties' settlement agreement constituted an instrument for the payment of money only and that defendants defaulted by failing to make payment under its terms, pursuant to CPLR 3213. On its motion, plaintiff submitted the settlement agreement, the amount due, and an affirmation of its general counsel, who swore to the loan history under penalty of perjury and stated that he was familiar with the facts through his "review of the records and documents kept in the file maintained by [plaintiff] with respect to this matter." The settlement agreement, which was signed by plaintiff and defendants, provided that defendants owed $7,900,000 as of October 12, 2012; that the maturity date was October 12th, 2017, the fifth anniversary date of the settlement agreement; that the interest rate was 0% a year for the first 18 months and then 5% a year thereafter, without compounding interest; and that upon default, interest was to accrue at the rate of 12% per annum.

In opposition, defendants failed to raise a triable issue as to a defense to the instrument. In light of defendants' express waiver of defenses in the loan agreement and their acknowledgement that their repayment obligation was unconditional, their potential counterclaims and affirmative defenses did not preclude CPLR 3213 relief. In addition, the settlement agreement specifies that default interest accrues on default and that payment is due on demand. The settlement agreement does not require that notice of demand be sent to the borrower.

LFR Collections, LLC. v. Tammy Tran Attorneys at Law, L.P., NY Slip Op 02852 (1st Dep't May 8, 2025)

Here is the decision.

Worksite accidents.

A lack of certainty as to exactly what preceded plaintiff's fall does not raise an issue of fact so as to preclude summary judgment.

Begonja v. Hudson Riv. Park Trust, NY Slip Op 02841 (1st Dep't May 8, 2025)

Here is the decision.

Necessary parties.

Necessary parties are those "who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action," pursuant to CPLR 1001[a].

Matter of Wohl v. Bruen, NY Slip Op 02861 (2d Dep't May 9, 2025)

Here is the decision.

Motion to vacate.

A party seeking to vacate an order entered upon a default in opposing a motion must submit evidence in admissible form establishing both a reasonable excuse for the default and a potentially meritorious opposition to the motion. A court has discretion to accept law office failure as a reasonable excuse where the claim is supported by a detailed and credible explanation of the default. Vague, conclusory, and unsubstantiated allegations of law office failure are insufficient.

Agostinacchio v. Jofaz Transp., Inc., NY Slip Op 02750 (2d Dep't May 7, 2025)

Here is the decision.

VE Day. 1945.

Leave to renew.

After entry of a final judgment, a motion for leave to renew pursuant to CPLR 2221(e)(2) based upon a change in the law that would change the prior determination must be made before the time to appeal the final judgment has expired, absent circumstances set forth in CPLR 5015.

Wells Fargo Bank, N.A. v. Eliacin, NY Slip Op 02621 (2d Dep't April 30, 2025)

Here is the decision.

Contract law.

A claim for breach of the implied covenant of good faith and fair dealing may not be used as a substitute for a non-viable contract claim.

Embarq, L.L.C. v. Bank of N.Y. Mellon Trust Co., N.A., NY Slip Op 02643 (1st Dep't May 1, 2025)

Here is the decision.

Failure to warn.

On a failure to warn claim, the defendant may establish its prima facie entitlement to summary judgment by demonstrating that any allegedly inadequate warnings were not a proximate cause of the plaintiff's injuries, that is., that additional or different warnings would not have deterred the plaintiff's misuse of the product. The defendant may meet its burden with testimony establishing that the plaintiff did not read the instructions or the owner's manual.

Ardi v. Miller, NY Slip Op 02641 (1st Dep't May 1, 2025)

Here is the decision.

Judicial estoppel.

Under the doctrine of judicial estoppel, a party who has assumed a certain position in a prior legal proceeding and secured a judgment that endorses the position is precluded from taking a contrary position in another legal proceeding simply because the party's interests have changed.

Wilmington Trust, N.A. v. Kamal, NY Slip Op 02622 (2d Dep't April 30, 2025)

Here is the decision.

Vacatur.

The enumerated categories for vacatur of a judgment pursuant to CPLR 5015(a) are not exhaustive, and courts have the common-law power to grant relief from a judgment in the interest of justice.

Matter of Anderson Ave. Assoc., L.P. v. Fuller, NY Slip Op 02640 (1st Dep't May 1, 2025)

Here is the decision.

CPLR 205,

After the first action was dismissed for plaintiff's lack of capacity to sue, CPLR 205(a) provided a six-month extension of time to commence an action by a proper party. The motion to dismiss the complaint as untimely is denied.

Zak v. Bronx Park Phase I Preserv., LLC, NY Slip Op 02561 (1st Dep't April 29, 2025)

Here is the decision.

Traffic law.

A vehicle operator with the right-of-way may anticipate that other operators will yield, in compliance with the Vehicle and Traffic Law. However, drivers with the right-of-way may be found to have proximately caused the accident if they did not use reasonable care to avoid it.

Bender v. East End Bus Lines, Inc., NY Slip Op 02305 (2d Dep't April 23, 2025)

Here is the decision.

Arbitration.

Undoing an award on the ground that the arbitrator exceeded his power requires a finding that the award violates public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power, pursuant to CPLR 7511[b].

Pincus v. Motulsky, NY Slip Op 02425 (1st Dep't April 24, 2025)

Here is the decision.

Leave to renew.

The Supreme Court properly denied the defendant's cross-motion for leave to renew her opposition to those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against her and for an order of reference, since the defendant failed to demonstrate that there had been a change in the law that would have altered the prior determination, pursuant to CPLR 2221[e].

Bank of Am. N.A. v. Bente, NY Slip Op 02304 (2d Dep't April 23, 2025)

Here is the decision.

Abuse of process.

The mere commencement of an action is not an abuse of process.

Sharp v. Bar Fluid, LLC, NY Slip Op 02429 (1st Dep't April 24, 2025)

Here is the decision.

Discovery.

After the note of issue is filed, further discovery will be permitted if the defendant demonstrates unusual or unanticipated circumstances subsequent to the filing, pursuant to 22 NYCRR 202.21[d].

Armor v. 501 EMR, LLC, NY Slip Op 02302 (2d Dep't April 23, 2025)

Here is the decision.

Contract law.

A contract is to be construed in accordance with the parties' intent, which is discerned from the four corners of the document itself. Consequently, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms.

Albert  v. Afanador, NY Slip Op 02301 (2d Dep't April 23, 2025)

Here is the decision.

Moving for default judgment.

Plaintiff was not entitled to a default judgment, as it failed to take any action for entry of the judgment within one year after default, as required by CPLR 3215(c).

371-381 PAS Assoc., LLC v. Moss & Moss LLP, NY Slip Op 02295 (1st Dep't April 22, 2025)

Here is the decision.

Vacating a default judgment.

Defendant's affidavit denying notice of the defect that allegedly caused plaintiff's injury shows a meritorious defense as to the motion to vacate the default judgment, given the preference for determining actions on the merits.

Corley v. 337 W. 138 St. Holdings, LLC, NY Slip Op 02298 (1st Dep't April 22, 2025)

Here is the decision.

Service of process.

The affidavit of plaintiff's process server demonstrates, prima facie, that service was properly made on defendant, pursuant to CPLR 308(2), by leaving a copy of the summons and complaint with a person of suitable age and discretion at defendant's residence and then mailing a copy to defendant at the same address. Nelson's mere denial of receipt of service is insufficient to rebut the presumption of proper service created by the properly executed affidavit of service.

Thompson v. Nelson, NY Slip Op 02284 (1st Dep't April 17, 2025)

Here is the decision.

Traverse hearings.

Plaintiff failed to demonstrate, by a preponderance of the evidence, proper service of the summons and complaint on defendant. At the traverse hearing, plaintiff's process server submitted the affidavit of service and testified that he served defendant by leaving the summons and complaint with defendant's relative at defendant's apartment. Defendant testified that he did not receive process at his residence, as he was at work on the day of the purported service and there was noone in his apartment to receive process at that time. In any event, he would not have allowed the process server into the building through the intercom system.

The court properly identified several reasons to undermine the process server's credibility and to accept defendant's testimony. It was shown that the process server was sanctioned on numerous occasions, and that he admitted to giving false testimony under oath at a prior traverse hearing. The court also properly found that the process server did not prepare affidavits of service with the necessary care and specificity, and that the recipient's physical characteristics, as reflected in the affidavit of service, did not meet defendant's physical description. Based on the foregoing, the court properly credited defendant's testimony and there is no basis to disturb the court's credibility determinations at the traverse hearing, which are entitled to deference.

Bertotti v. Lief, NY Slip Op 02271 (1st Dep't April 17, 2025)

Here is the decision.

Personal jurisdiction.

Lack of personal jurisdiction is an affirmative defense that is waived by appearing in an action, either formally or informally, without raising the defense in an answer or pre-answer motion to dismiss. A defendant's participation in a lawsuit on the merits indicates an intention to submit to the court's jurisdiction. 

Matter of Weiss v. County of Suffolk, NY Slip Op 02210 (2d Dep't April 16, 2025)

Here is the decision.

"He is not here."

Vigil.

Stabat Mater Dolorosa.

"Quid est veritas?"

Contract law.

A party in breach of its own contractual obligations is not entitled to specific performance on the agreement. 

Jawara v. Araka, NY Slip Op 02130 (1ast Dep't April 10, 2025)

Here is the decision.

Summary judgment.

Since a motion for summary judgment must be addressed to specific causes of action or defenses, the court may search the record and award summary judgment for a nonmoving party only as to a cause of action or issue that is the subject of the motion before the court, pursuant to CPLR 3212(b). Apart from considerations of simple fairness, allowing a summary judgment motion by any party to bring up for review every claim and defense asserted by every other party would be tantamount to shifting the well-accepted burden of proof on summary judgment motions.

Gordillo-Jiminez v. Ravagh Persian Grill, Inc., NY Slip Op 02059 (2d Dep't April 9, 2025)

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Attorneys' fees.

Discharge for cause is necessary to warrant the forfeiture of an attorney's fee. 

Thuku v. 324 E. 93, LLC, NY Slip Op 02138 (1st Dep't April 10, 2025)

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Arbitration agreements.

The enforceability of arbitration agreements is governed by the rules applicable to contracts. Although the plaintiff did not sign the agreement in her individual capacity, she is bound by the arbitration clause under the direct benefits theory of estoppel, as the allegations in the complaint show that she knowingly exploited the benefits of the agreement and received benefits flowing directly from that agreement. The defendants did not waive the defense that the parties' dispute was subject to arbitration. The defendants' conduct in appearing in and defending this state court action was not inconsistent with the affirmative defense asserted in their answer that the plaintiff's claims were subject to arbitration.

Belchikov v. XTP Implementation Servs., Inc., NY Slip Op 02054 (2d Dep't April 9, 2025)

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Leave to Renew

A motion for leave to renew based on an alleged change in the law must be made before entry of a final judgment or before expiration of the time to appeal.

U.S. Bank, N.A. v. Gallant, NY Slip Op 02141 (1st Dep't April 10, 2025)

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Default judgments.

On a motion pursuant to CPLR 3215 for leave to enter a default judgment, a plaintiff is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendant's default in answering or appearing. Then, the defendant must show either that there was no default or that there was a reasonable excuse for the delay and a potentially meritorious defense. The determination as to whether an excuse is reasonable is committed to the sound discretion of the motion court. Ongoing settlement negotiations may constitute a reasonable excuse for a default.

Arnav  Indus. Inc. Profit Sharing Plan & Trust v. 3449-3461 Hamilton Ft, LLC, NY Slip Op 02052 (2d Dep't April 9, 2025)

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Hearsay: Party Admissions.

As an exception to the hearsay rule, a party admission is admissible against that party as evidence of the matter asserted, regardless of whether the statement was against the party's interest when the statement was made.

Vivar v. Citigroup Tech., Inc., NY Slip Op 02051 (1st Dep't April 8, 2025)

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Sua sponte dismissal.

The court's power to dismiss a complaint sua sponte is to be exercised sparingly and only in extraordinary circumstances.

Wood v. Heni, NY Slip Op 01972 (2d Dep't April 2, 2025)

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Premises liability.

Although landlords and permittees have a common-law duty to minimize foreseeable dangers on their property, including the criminal acts of third-parties, they are not the insurers of a visitor's safety. In cases arising out of injuries sustained on another's property, the scope of the possessor's duty is defined by past experience and the likelihood of third-person conduct which is likely to endanger the visitor's safety. A public establishment's owner has no duty to protect patrons against a harm that is unforeseeable and unexpected.

L.D. v. Brooklyn Kings Plaza, LLC, NY Slip Op 01906 (2d Dep't April 2, 2025)

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Medical Malpractice: Experts' Affidavits.

The affidavit of plaintiff's out-of-state expert may be considered notwithstanding the lack of a certificate of conformity as required by CPLR 2309. The lack of the certificate is a mere irregularity, not a fatal defect.

Smalls v. Finegold, NY Slip Op 02024 (1st Dep't April 3, 2025)

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Proof of service.

Failure to file proof of service is a procedural irregularity, not a jurisdictional defect, and it may be cured by motion or sua sponte by the court. The court may grant this relief only upon such terms as may be just, and only where there is no prejudice to a substantial right of a party. The court may not make such relief retroactive, to the prejudice of the defendant, by putting the defendant in default as of a date prior to the order. A court may not give effect to a default judgment that, prior to the curing of the irregularity, was a nullity requiring vacatur.

Cherkassky v. Goykman, NY Slip Op 01904 (2d Dep't April 2, 2025)

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Amending a pleading.

The motion court denied defendant's request to amend its answer, made for the first time as a footnote in its motion reply papers. A court may grant a request to amend a pleading without a formal motion where the amendment is not futile and will not result in prejudice to any party. The court found prejudice because the amendment would be made at the end of discovery.

Bloom v. Helmsley Spear, LLC, NY Slip Op 01999 (1st Dep't April 3, 2025)

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Mandamus.

The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there is a clear legal right to the relief sought.

Matter of Lubrano v. Clarke, NY Slip Op 01809 (2d Dep't March 26, 2025)

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Spoliation.

The court exercised its discretion and declined to strike the City's answer and to direct an adverse inference charge since the missing video was neither the sole source of information about the incident in which plaintiff was injured nor the sole means by which she can establish her case. Moreover, plaintiff did not show that the missing video was intentionally destroyed or that records beneficial to the City's defense were selectively preserved. Plaintiff's testimony and the conflicting accounts of the incident in the reports prepared by Department of Corrections employees are sufficient to enable the jury to properly evaluate credibility. Nevertheless, permitting the City's witnesses to testify to the contents of the missing tape would provide it with a tactical advantage from the spoliation. Accordingly, defendant is precluded from presenting evidence concerning the contents of the missing tape.

Tittel v. City of New York, NY Slip Op 09102 (1st Dep't April 1, 2025)

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Appellate practice.

Supreme Court properly denied defendant's motion to vacate the order granting a default judgment. Defendant appealed the order granting the motion for a default judgment, but then abandoned that appeal. Therefore, the order was deemed affirmed, and Supreme Court was bound by the doctrine of the law of the case. Furthermore, issues that could have been raised on the abandoned appeal may not be reviewed on this appeal.

D. Penguin Bros. Ltd. v. City Natl. Bank, NY Slip Op 01863 (1st Dep't March 27, 2025)

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Employment Law.

A cause of action for negligent hiring, retention, or supervision requires a showing that the employer knew or should have known of the employee's propensity for the conduct which caused the injury and that there is a connection between the negligence and the injury. The employer's negligence lies in its having placed the employee in a position to cause foreseeable harm which most probably would not have occurred had the employer taken reasonable care in making decisions regarding the employee's hiring, retention, or supervision.

Schlesinger v. Sisters of the Order of St. Dominic, NY Slip Op 01831 (2d Dep't March 26, 2025)

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Discovery law.

The admissibility of evidence has no bearing on whether the requested information is discoverable.

J.L. v. Archdiocese of N.Y., NY Slip Op 01771 (1st Dep't March 25, 2025)

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