Contract law.

An agent executing a contract on behalf of a disclosed principal is not liable for breach in the absence of clear and explicit evidence of the agent's intention to assume personal liability.

166-20 Union Turnpike, LLC v. Tavak, LLC, NY Slip Op05054 (2d Dep't September 24, 2025)

Here is the decision.

Personal jurisdiction.

A court may exercise personal jurisdiction over a non-domiciliary who, in person or through an agent,  transacts any business within the State, pursuant to CPLR 302(a)(1). The statute requires purposeful activities, that is, those with which a defendant, through volitional acts, avails itself of the privilege of conducting activities within the State, thus invoking the benefits and protections of its laws.

McGuire v. Roman Catholic Bishop of Springfield, NY Slip Op 05154 (1st Dep't September 25, 2025)

Here is the decision.

Appellate practice.

The Appellate Division will not decide an issue based on a position that was not argued, either on appeal or below. Resolving disputes in such a manner would be impractical and an obstacle to the orderly administration of justice. While dispositive legal arguments may be raised for the first time on appeal, the arguments must actually be raised.

938 St. Nicholas Ave. Lender LLC v. 936-938 Cliffcrest Hous. Dev. Fund Corp., NY Slip Op 05052 (1st Dep't September 23, 2025)

Here is the decision.

Summary judgment.

It is well settled that a court's role in deciding a motion for summary judgment is issue finding, not issue determination. Moreover, in deciding the motion, it is not the court's function to assess credibility. Here, the parties' conflicting versions of how the accident occurred preclude summary judgment.

Wachtel v. Alan Joel Communications, Inc., NY Slip Op 05053 (1st Dep't September 23, 2025)

Here is the decision.

Quantum meruit.

Quantum meruit may be pleaded in the alternative where there is a bona fide dispute as to whether there is a contract, or where the contract does not cover the dispute in issue.

Kliger-Weiss Infosystems, Inc. v. Darien Sport Shop, Inc., NY Slip Op 04981 (2d Dep't September 17, 2025)

Here is the decision.

Vacating a default.

The court may accept a detailed claim of law office failure as a reasonable excuse for a default, but mere neglect is insufficient.

Feng Li v. Changeling Xue, NY Slip Op 04979 (2d Dep't September 17, 2025)

Here is the decision.

Employment law.

A plaintiff alleging discrimination by a public employer may proceed pursuant to article 78 or by plenary action. As a department of the City, the NYPD is not a separate legal entity amenable to suit.

Farah v. City of New York, NY Slip Op 04978 (2d Dep't September 17, 2025)

Here is the decision.

Civil contempt.

In order to sustain a finding of civil contempt under Judiciary Law § 753, it is necessary to establish that a lawful court order clearly expressing an unequivocal mandate was in effect, that the person alleged to have violated the order had actual knowledge of its terms, and that the violation has defeated, impaired, impeded, or prejudiced the rights of a party. The aim of civil contempt is to vindicate a party's right to the benefits of a judicial mandate or to compensate that party for the interference by the contemnor. The party seeking a finding of contempt bears the burden of proving its elements by clear and convincing evidence.

Deutsche Bank Natl. Trust Co. v. Raimo, NY Slip Op 04976 (2d Dep't September 17, 2025)

Here is the decision.

Severance.

It is within a trial court's discretion to grant the severance of a third-party's claim, but the discretion should be exercised sparingly. The statute is CPLR 1010.

Carvajal v. Alcaide, NY Slip Op 04973 (2d Dep't September 17, 2025)

Here is the decision.

Contract law.

A guaranty is a promise to fulfill another party's obligations, and is subject to the principles of contract construction. Under those principles, a written agreement that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms. Guaranties that contain language obligating the guarantor to payment without recourse to any defenses or counterclaims are enforceable as absolute and unconditional.  On a motion for summary judgment to enforce a written guaranty, all that the creditor need prove is an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty.

Almark Holding Co,, LLC v. Abbas, NY Slip Op 04969 (2d Dep't September 17, 2025)

Here is the decision.

Service of process.

The failure to serve process leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void. The burden of proving that personal jurisdiction has been acquired over a defendant is on the plaintiff.

Service of process upon a natural person must be made in strict compliance with statutory methods of service pursuant to CPLR 308. CPLR 308 requires that service be attempted by personal delivery of the summons to the person to be served, or by delivery to a person of suitable age and discretion at the actual place of business, dwelling place, or usual place of abode. Service pursuant to CPLR 308(4) may be used only where service under CPLR 308(1) or (2) cannot be made with due diligence. The due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received. The due diligence requirement may be met with 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 at such location at those times. In addition, it must be shown that the process server made genuine inquiries about the defendant's whereabouts and place of employment.

Bank of N.Y. Mellon v. Simpson, NY Slip Op 04970 (2d Dep't September 17, 2025)

Here is the decision.

Hearsay.

A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker's business practices and procedures. Computations based on a review of unidentified and unproduced business records constitute inadmissible hearsay and lack probative value.

Bank of Am., N.A. v. Barnett, NY Slip Op 04861 (2d Dep't September 10, 2025)

Here is the decision.

Duty of care.

Whether there is a duty of care is a question of law. Absent a duty, there is no breach and, without breach, there is no liability for negligence. Courts have imposed a duty of care where there are special circumstances in which there is sufficient authority and ability to control the conduct of third-persons. However, a parent is not liable for the tortious or intentional conduct of an emancipated child.

Ballan v. Greenberg, NY Slip Op 04860 (2d Dep't September 10, 2025)

Here is the decision.

Lack of personal jurisdiction.

A defendant waives the defense of lack of personal jurisdiction by appearing in an action, either formally or informally, without raising the defense in an answer or pre-answer motion to dismiss. A defendant may appear informally by actively litigating the action before the court. When a defendant participates in a lawsuit on the merits, he indicates an intention to submit to the court's jurisdiction over the action, and by appearing informally in this manner, the defendant confers in personam jurisdiction on the court. Here, the defendants waived the defense of lack of personal jurisdiction by opposing a prior motion by the plaintiff for leave to enter a default judgment against them on the ground that the plaintiff failed to establish the merits of its cause of action against them and by thereafter opposing another prior motion by the plaintiff and filing a cross-motion for affirmative relief, all without asserting an objection to jurisdiction.

BAC Home Loans Servicing, L.P. v. Davis, NY Slip Op 04859 (2d Dep't September 10, 2025)

Here is the decision.

Account stated.

The plaintiff pleads an account stated with evidence that it generated statements for the defendant in the regular course of business, that it mailed those statements on a monthly basis, that the defendant accepted and retained these statements, without objection, for a reasonable period of time, and that the defendant made partial payments thereon.

American Express Natl. Bank v. Zelkovitz, NY Slip Op 04857 (2d Dep't September 10, 2025)

Here is the decision.

Appellate practice.

The Appellate Division may not make findings based on matters outside the record.

Olympic Galleria, Co., Inc. v. Sitt, NY Slip Op 04965 (1st Dep't September 11, 2025)

Here is the decision.

Summary judgment motions.

A plaintiff cannot raise a new theory of liability in opposition to a motion for summary judgment.

Alexandre v Shih T. Wang, NY Slip Op 04855 (2d Dep't September 10, 2025)

Here is the decision.

Preliminary injunctions.

Proof establishing entitlement to a preliminary injunction must be by affidavit or other competent proof, with evidentiary detail. The element of likelihood of success on the merits may be sufficiently established even where the facts are in dispute and the evidence is inconclusive.

New York Mar. & Gen. Ins. Co. v. Millennia Assur., Inc., NY Slip Op 04964 (1st Dep't September 11, 2025)

Here is the decision.

Piercing the corporate veil.

Allegations that corporate funds were diverted to make it judgment-proof or that the corporation was dissolved without appropriate reserves are sufficient to satisfy the pleading requirement to pierce the corporate veil on an alter-ego theory. The law does not require that the parent company's actions be fraudulent, only that they result in a wrong or an inequity. 

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

Here is the decision.

Law of the case.

The doctrine of the law of the case applies to legal determinations that were necessarily resolved on the merits in the prior decision, and to the same questions presented in the same case, and where the parties had a full and fair opportunity to litigate the initial determination. When the court executes an order which is jurisdictionally valid, that order becomes the law of the case which may be undone only by appellate review and reversal, or by application to reargue or renew or to vacate made to the ordering judge.

Lloyd v. Lloyd, NY Slip Op 04776 (2d Dep't August 27, 2025)

Here is the decision.

Appellate practice.

As the plaintiff's contentions relate to motions previously decided in two orders, and he did not file a notice of appeal from either of those orders, his contentions are not properly before the Appellate Division, pursuant to CPLR 5515.

Kelsey v. Anonymous #2, NY Slip Op 04773 (2d Dep't August 27, 2025)

Here is the decision.

Contract law.

Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party. However, there are three exceptions to the general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely. Where the pleadings do not allege facts which establish the applicability of an exception, a defendant is not required to affirmatively demonstrate that the exceptions do not apply in order to establish its prima facie entitlement to judgment as a matter of law.

Kapoian-Trapani v. City of New York, NY Slip Op 04772 (2d Dep't August 27, 2025)

Here is the decision.

Legal malpractice.

A party may plead a cause of action alleging legal malpractice where the defendant drafted a usurious loan document that is not excepted from the usury laws.

Salamone v. Deily & Glastetter, LLP, NY Slip Op 04846 (1st Dep't September 4, 2025)

Here is the decision.

Preclusion.

Plaintiff raises issues that were or could have been litigated in an earlier action, and so he is precluded from relitigating them in this action.

Hall v. Deutsche Bank Natl. Trust Co., NY Slip Op 04768 (2d Dep't August 27, 2025)

Here is the decision.

Summary judgment.

The mere hope that, during discovery, evidence sufficient to defeat a motion for summary judgment may be uncovered is not enough to deny the motion as premature.

Wilson v. Tillman, NY Slip Op 04819 (1st Dep't August 28, 2025)

Here is the decision.

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.