Contract Law: Warranties and Representations.

Where the contract expressly disclaims any warranties or representations, a cause of action alleging breach based on a warranty or representation does not lie.

4 Colonial Dr., LLC v. Suburban Consultants, Ltd., NY Slip Op 05930 (2d Dep't October 29, 2025)

Here is the decision.

Default Judgments.

A default judgment cannot exceed in amount or differ in the kind of relief from what is demanded in the complaint. The judgment is vacated and the matter remitted to the Supreme Court for entry of an amended judgment limiting the award to the amount originally demanded in the complaint.

Deutsch v. Levy, NY Slip Op 05790 (2d Dep't October 22, 2025)

Here is the decision.

Arbitration.

A party seeking to compel arbitration must establish that there is a valid agreement to arbitrate. General Business Law § 399-c voids arbitration clauses in a written contract for the sale of consumer goods to which a consumer is a party.

Chrzan v. Malinowski, NY Slip Op 05788 (2d Dep't October 22, 2025)

Here is the decision.

Contract Law: Recission.

Rescission is an equitable remedy, and a claim for rescission may be asserted only against a party to the contract.

Will B. Sandler Disclaimer Trust v. Swersky, NY Slip Op 05909 (1st Dep't October 23, 2025)

Here is the decision.

Motion for Renewal.

Defendant's motion for renewal is denied as untimely, since it was filed after the time to appeal from the judgment had passed.

Wilmington Sav. Fund Socy. FSB v. Scaffidi, NY Slip Op 05910 (1st Dep't October 23, 2025)

Here is the decision.

Amending a Pleading.

A party may amend its pleading at any time by leave of court or by stipulation of all parties, pursuant to CPLR 3025[b]. Whether to grant leave to amend is within the trial court's discretion. 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. The burden of demonstrating prejudice or surprise, or that a proposed amendment is palpably insufficient or patently devoid of merit, falls upon the party opposing the motion. No evidentiary showing of merit is required under CPLR 3025(b).

Deutsche Bank Natl. Trust Co. v. David, NY Slip Op 05791 (2d Dep't October 22, 2025)

Here is the decision.

Written Orders.

A written order must conform strictly to the court's decision, and in the event of an inconsistency, the decision controls. An inconsistency may be corrected either by way of a motion for resettlement or on appeal, pursuant to CPLR 2221 and 5019[a].

American Tr. Ins. Co. v. Hackensack Surgery Ctr., LLC, NY Slip Op 05787 (2d Dep't October 22, 2025)

Here is the decision.

Preclusion.

A conditional order of preclusion requires a party to provide discovery by a date certain, or face the sanctions specified in the order. The court will not inquire as to whether the failure to cooperate had been willful. Failure to comply with the order makes it absolute.

Alston v. New York City Tr. Auth., NY Slip Op 05786 (2d Dep't October 22, 2025)

Here is the decision.

Appellate Practice.

An appellate court's resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court.

Congregation Erech Shai Bais Yosef, Inc. v. Werzberger, NY Slip Op 05666 (2d Dep't October 15, 2025)

Here is the decision.

Summary Judgment.

A party may raise an unpleaded issue on summary judgment if the other party is not taken by surprise and does not suffer prejudice. Here, there was no surprise because the issue was discussed at the depositions of at least two defendants.

White v. Turitz, NY Slip Op 05758 (1st Dep't October 16, 2025)

Here is the decision.

Disqualification of an Attorney.

The disqualification of an attorney rests within the sound discretion of the court. Although a party's entitlement to be represented in ongoing litigation by counsel of its own choosing is a valued right, that right will not supersede a clear showing that disqualification is warranted. On a motion to disqualify an attorney, the moving party bears the burden of showing that disqualification is warranted.

Congregation Erech Shai Bais Yosef, Inc. v. Werzberger, NY Slip Op 05665 (2d Dep't October 15, 2025)

Here is the decision.

Unknown Defendants.

Pursuant to CPLR 1024, "[a] party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much of his name and identity as is known." Reliance on the statute requires the plaintiff to exercise due diligence to identify the defendant prior to the running of the statute of limitations. Failure to exercise due diligence to ascertain the John Doe's name subjects the complaint to dismissal as to that party. The John Doe party must be described so as to fairly apprise the party that he is the intended defendant.

Abrego v. Tile World Import Corp., NY Slip Op 05661 (2d Dep't October 15, 2025)

Here is the decision.

Leave to Renew.

Supreme Court properly exercised its discretion in denying petitioner's motion for leave to renew, finding that the purportedly new facts would not have changed the judgment, pursuant to CPLR 2221[e][2].  The new information, which concerned whether respondents had relied on similar settlement agreements in other administrative proceedings, would not have altered the applicability of this settlement agreement to preclude judicial review.

383 W. Broadway Corp. v. Solomon, NY Slip Op 05741 (1st Dep't October 16, 2025)

Here is the decision.

Dismissal: Evidentiary Material.

Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one. Unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, the motion should be denied.

60 E. 196, LLC v. Tokio Mar. Specialty Ins. Co., NY Slip Op 05660 (2d Dep't October 15, 2025)

Here is the decision.

Negligence Claims.

The elements of a common-law negligence claim are a duty, its breach, and an injury proximately resulting therefrom. The duty element may be rooted in a relationship between the plaintiff and the defendant or between the defendant and a third-person tortfeasor.

Aydiner v. Quijije, NY Slip Op 05489 (2d Dep't October 8, 2025)

Here is the decision.

Real Property Law: Purchaser for Value.

Pursuant to Real Property Law § 266, a bona fide purchaser for value is protected in its title unless it had previous notice of an alleged fraud. A bona fide purchaser's title is protected absent notice of the immediate grantor's fraudulent intent, or of fraud rendering void the title of the grantor.  In order to establish that it is a bona fide purchaser for value, a party has the burden of proving that it purchased the property for valuable consideration and that it did not purchase with knowledge of facts that would lead a reasonably prudent purchaser to make inquiry. The intended purchaser must be presumed to have investigated the title, and to have examined every deed or instrument properly recorded, and to have known every fact disclosed or to which an inquiry suggested by the record would have led. Accordingly, a purchaser who fails to use due diligence in examining the title is chargeable, as a matter of law, with notice of the facts which a proper inquiry would have disclosed.

Alli v Navins Holdings, Inc., NY Slip Op 05487 (2d Dep't October 8, 2025)

Here is the decision.

Corporate Law: Boards of Directors.

New York trial courts have expressly held that a board of directors is not an entity that may be sued separately from the corporation, and federal courts have held likewise.

Tahari v. 860 Fifth Ave. Corp., NY Slip Op 05584 (1st Dep't October 9, 2025)

Here is the decision.

Dismissal: Documentary Evidence.

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 factual allegations, thereby conclusively establishing a defense as a matter of law.

Artzy v. Specialized Loan Servicing, LLC, NY Slip Op 05488 (2d Dep't October 8, 2025)

Here is the decision.

Court holiday.

Appellate pracctice.

The Appellate Division declines to consider plaintiff's unpreserved argument that the relation back doctrine under CPLR 203(f) is applicable, as it is not a purely legal argument that is apparent on the face of the record.

Wayman v, CPE Hous. Dev. Fund Co.,Inc., NY Slip Op 05485 (1st Dep't October 7, 2025)

Here is the decision

Motions to dismiss: Cross-claims.

Where a defendant is not liable on any causes of action in the complaint, the cross-claims against that defendant must be dismissed.

Dluzen v. Equinox Group, NY Slip Op 05486 (1st Dep't October 7, 2025)

Here is the decision.

Sanctions for frivolous conduct.

In its discretion, a court may award expenses and attorney's fees as a sanction for frivolous conduct. The party seeking sanctions has the burden to demonstrate that its opponent's conduct was frivolous within the meaning of 22 NYCRR 130-1.1(c).

Contreras v. Jimmy"s Auto Top, NY Slip Op 05215 (2d Dep't October 1, 2025)

Here is the decision.

Evading service.

Defendant's motion to vacate a default judgment is denied, as the record supports an inference that defendant deliberately attempted to evade service. Through its chief executive officer's affidavit, defendant demonstrated that it did not receive notice of the summons in time to defend because it neglected to update its address with the Secretary of State. However, eight months before plaintiff commenced the action, plaintiff sent defendant a letter that was labeled a pre-litigation notice, that warned defendant that plaintiff would pursue all available legal remedies to recover the balance owed under their agreements, and that reserved all of plaintiff's rights, claims, and causes of action arising from their agreements. Defendant did not dispute that it received this notice. Despite knowing of the looming threat of litigation, defendant never updated its address with the Secretary of State.

Raistone Purchasing v. London Luxury, NY Slip Op 05324 (1st Dep't October 2, 2025)

Here is the decision.

Summary judgment motions.

A party opposing summary judgment is entitled to obtain further discovery when it appears that there may be facts supporting the opposing party's position but the cannot then be stated. A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant. The mere hope or speculation that discovery may reveal evidence sufficient to withstand summary judgment does not warrant denial of the motion.

Charles v. City of New York, NY Slip Op 05213 (2d Dep't October 1, 2025)

Here is the decision.

Unjust enrichment.

A cause of action for unjust enrichment does not lie where it merely duplicates or replaces a contract or tort claim, including tortious interference.

WarnerDirect, LLC v. Paramount Global, NY Slip Op 05330 (1st Dep't October 2, 2025)

Here is the decision.

Appellate Practice: Bench Trials.

In reviewing a trial court's findings of fact following a non-jury trial, the Appellate Division's authority is as broad as that of the trial court and includes the power to render the judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses.

Arden Besunder, P.C. v. Harwood, NY Slip Op 05211 (2d Dep't October 1, 2025)

Here is the decision.

Appellate practice: Superseding judgments.

The amended judgment, sua sponte, merely corrected typographical errors and annexed plaintiff's costs and disbursements. It did not affect any substantive rights decided upon the original judgment and does not supersede the original judgment for purposes of taking an appeal.

21st Mtge. Corp. v. Jin Hua Lin, NY Slip Op 05288 (1st Dep't October 2, 2025)

Here is the decision.

Contract law: Oral modifications.

The statute of frauds bars an oral modification where the contract provides that modifications must be in writing, but an oral modification is enforceable if there is partial performance.

2261 Realty, LLC v. Cai Ping Wang, NY Slip Op 05210 (2d Dep't October 1, 2025)

Here is the decision.

Leave to amend.

Leave to amend a pleading should be freely granted absent prejudice or surprise or unless the proposed amendment is palpably insufficient or patently devoid of merit, pursuant to CPLR 3025 [b].

Norguard Ins. Co. v. 148 W. Owner, LLC, NY Slip Op 05193 (1st Dep't September 30, 2025)

Here is the decision.

Leave to renew.

A motion for leave to renew requires a change in the law that would change the prior determination. A clarification of the decisional law is sufficient to support renewal.

Bank of Am. N.A. v. Levada, NY Slip Op 05056 (2d Dep't September 24, 2025)

Here is the decision.

Striking a pleading.

Plaintiff's motion to strike the answer is denied because counsel's affirmation of good faith is insufficient. Counsel states only perfunctorily that defendants failed to comply with four court orders for a deposition and that he contacted defendants on a certain date to confirm the deposition. Counsel fails to attest that he conducted an in-person or telephonic conference, as required by 22 NYCRR 202.20-f(b).

Servan v. ES Bldrs. Group, LLC, NY Slip Op 05184 (1st Dep't September 25, 2025)

Here is the decision.