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.