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.