Motion Practice.

A plaintiff may not raise a claim for the first time in its opposition to the defendant's motion to dismiss.

Myers v. Doherty, NY Slip Op 06550 (1st Dep't November 25, 2025)

Here is the decision.

Settling an Ordet.

22 NYCRR 202.48(c)(1) provides that "[w]hen settlement of an order or judgment is directed by the court, a copy of the proposed order or judgment with notice of settlement . . . shall be served on all parties." Further, 22 NYCRR 202.48(a) provides that "[p]roposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted." The failure to "submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown," pursuant to § 202.48(b). However, a court should not deem an action or judgment abandoned where the result would not bring the repose to court proceedings that 22 NYCRR 202.48 was designed to effectuate and would waste judicial resources.

Here, the record does not show that the plaintiff settled the order in accordance with the requirements of 22 NYCRR 202.48(a). Nevertheless, the Supreme Court providently exercised its discretion in denying vacatur of the order of reference and the order and judgment of foreclosure and sale pursuant to 22 NYCRR 202.48(b). The defendant was not prejudiced by the plaintiff's failure to strictly comply with the requirements of 22 NYCRR 202.48. Moreover, the denial of vacatur pursuant to 22 NYCRR 202.48(b) brought repose to the proceedings and preserved judicial resources.

Bank of N.Y. Mellon Trust Co., N.A. v. Ahmed, NY Slip Op 06588 (2d Dep't November 26, 2025)

Here is the decision.

Escrow.

The purpose of an escrow is to assure the carrying out of an obligation already contracted for. If an escrow is established, the instrument in escrow becomes irrevocable.

United Legwear Co., LLC v. All in the Cards, Inc., NY Slip Op 06557 (1st Dep't November 25, 2025)

Here is the decision.

Court Holiday.

Storm-in-Progress Rule.

Plaintiff is a tenant of an apartment building owned and managed by defendants. She alleges that she was injured when she slipped and fell on ice on the walkway in front of her building. On the day of the accident, it had been raining and snowing before plaintiff left the building, and the building superintendent had removed sleet and snow from the area around the building entrance, placing salt on the ground near the entrance. The superintendent testified that he was salting the sidewalk in front of the building when he learned of plaintiff's accident.

Defendants established prima facie entitlement to summary judgment by submitting climatological data and a meteorologist's affidavit showing that there was a winter storm in progress at the time of the accident. Defendants' evidence was corroborated by the deposition testimony of the superintendent, who stated that sleet was falling around the time that plaintiff fell.

In opposition, plaintiff failed to raise a triable issue of fact. Her conclusory deposition testimony that it was not snowing at the time of of the accident does not raise a triable issue. Neither does laintiff's speculation that defendants' snow removal was inadequate  Plaintiff presented no evidence that the superintendent created or exacerbated the icy condition of the walkway through his efforts to clear the snow and ice from the front of the building.

Reversed and dismissed.

Patterson v. 786 E 182, LLC, NY Slip Op 06392 (1st Dep't November 20m 2025)

Here is the decision.

Motions to Dismiss.

In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court should liberally construe the complaint and accept as true the facts alleged in the complaint and any submissions in opposition to the motion to dismiss.  Evidentiary material submitted by the plaintiff in opposition to dismissal may be considered to remedy defects in the complaint. If the court considers evidentiary material, the criterion becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one.  

Berman v. Sosman, NY Slip Op 06304 (2d Dep't November 19, 2025)

Here is the decision.

Discovery Sanctions.

Pursuant to CPLR 3126(1), the imposition of sanctions against the party from whom discovery is sought requires a pattern of deliberate, contumacious delay, as opposed to aberrant behavior where there otherwise is substantial compliance with discovery demands or a failure to comply based on a mistaken interpretation of what was required to be produced.

Sherman v. Zampella, NY Slip Op 06397 (1st Dep't November 20, 2025)

Here is the decision.

Fraud Claims.

The elements of a cause of action for fraud are a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff, and damages. A fraud claim must be pleaded with particularity, pursuant to CPLR 3016(b). The purpose of CPLR 3016(b) is to inform a defendant of the complained of incidents, and the statute should not be so strictly interpreted as to prevent an otherwise valid cause of action in situations where it may be impossible to state in detail the circumstances constituting a fraud. CPLR 3016(b) is satisfied when the facts permit a reasonable inference of the alleged misconduct.

American Premium Realty Group, LLC v. 37-19 Realty, Inc., NY Slip Op 06301 (2d Dep't November 19, 2025)

Here is the decision.

Quantum Meruit.

The elements of a cause of action sounding in quantum meruit are: (1) the performance of the services in good faith; (2) the acceptance of the services by the person to whom they are rendered; (3) an expectation of compensation therefor; and (4) the reasonable value of the services.  The question of whether a party had a reasonable expectation of compensation for services rendered is a matter for the trier of fact to determine based on the evidence before it.

239 E.18th Owners Corp. v. Wade, NY Slip Op 06384 (1st Dep't November 20, 2025)

Here is the decision.

Discovery.

CPLR 3101(a)(4), concerning disclosure from non-parties to an action, provides for full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by anyone, upon notice stating the circumstances or reasons such disclosure is sought. The party who served the subpoena has an initial burden to show that the non-party was apprised of the circumstances or reasons that discovery is sought. If that is satisfied, it is then the burden of the person moving to quash a subpoena to establish either that the requested disclosure 'is irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious. Should the movant meet this burden, the subpoenaing party must then establish that the discovery sought is material and necessary to the prosecution or defense of the action.

Dorman v. Luva of NY, LLC, NY Slip Op 06155 (2d Dep't November 12, 2025)

Here is the decision.

Appellate Practice.

The denial of a motion for reargument is not appealable.

U.S. Bank Trust, N.A. v. Santiago, NY Slip Op 06300 (1st Dep''t November 18, 2025)

Here is the decision.

Legal Malpractice.

In order to state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney's breach of duty proximately caused the plaintiff actual and ascertainable damages. In addition, the plaintiff must establish that there was an attorney-client relationship. An attorney's conduct or inaction is the proximate cause of a plaintiff's damages if but for the attorney's negligence, the plaintiff would have succeeded on the merits of the underlying action, or would not have sustained actual and ascertainable damages.

Coniglio v. Dansker & Aspromonte Assoc., NY Slip Op 06154 (2d Dep't November 12, 2025)

Here is the decision.

Appellate Practice.

The Appellate Division is empowered to address an issue which was fully argued by the parties but not addressed by the Supreme Court.

Bamonte v. Charatan, NY Slip Op 06152 (2d Dep't November 12, 2025)

Here is the decision.

Failure to Appear.

What constitutes a reasonable excuse for a default generally lies within the sound discretion of the motion court. The reasonable excuse determination is sui generis and should be based on all relevant factors, including the length of the delay, the existence of any prejudice, whether the default was willful, and the strong public policy favoring the resolution of cases on the merits.

Metropolis Elec. Corp. v. Vector Bldg. Corp., NY Slip Op 06259 (1st Dep't November 13, 2025)

Here is the decision.

Time-Barred Claims.

On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. The burden then shifts to the plaintiff to present admissible evidence establishing that the action was timely or to raise a question of fact as to whether the action was timely. Where an action involves claims that could have been made in another proceeding for which there is a specific limitation period, the action is subject to the shorter limitations period. So, where a proceeding could have been brought pursuant to CPLR article 78, the four-month statute of limitations applicable to such proceedings applies.

Argo v. NYCERS, NY Slip Op 06151 (2d Dep't November 12, 2025)

Here is the decision.

Fraud on the Court.

A fraud on the court involves willful conduct that is deceitful and obstructionist, which injects misrepresentations and false information into the judicial process so serious that it undermines the integrity of the proceeding.

Taveras v. Tuck-It-Away Assoc., L.P., NY Slip Op 06148 (1st Dep't November 6, 2025)

Here is the decision.

Injunctive Relief.

In order to obtain a preliminary injunction, the movant must establish (1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) a balancing of the equities in the movant's favor.

Doering v. Oelsner, NY Slip Op 06048 (2d Dep't November 5, 2025)

Here is the decision.

A Cause of Action for Conversion.

A cause of action sounding in conversion lies when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession.

Antebi v. Guindi, NY Slip Op 06044 (2d Dep't November 5, 2025)

Here is the decision.

Dismissal of Affirmative Defenses.

CPLR 3211(b) provides that "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." When moving to dismiss, the plaintiff bears the burden of demonstrating that the affirmative defenses are without merit as a matter of law because they either do not apply under the factual circumstances of the case,or fail to state a defense. On a motion pursuant to CPLR 3211(b), the court should apply the same standard it applies to a motion to dismiss pursuant to CPLR 3211(a)(7), and the factual assertions of the defense will be accepted as true. If there is any doubt as to the availability of a defense, it should not be dismissed.

Diversified Bldg. Co., LLC v. Nader Enters., LLC, NY Slip Op 06047 (2d Dep't November 5, 2025)

Here is the decision.

Court Holiday.

Iwo Jima, February-March 1945

The Sufficiency of a Pleading.

At the pleading stage, all that is required is that the plaintiff plead statements that are sufficiently particular to give the defendant notice of the occurrence intended to be proved, pursuant to CPLR 3013.

TerraCotta Nine, LLC v. BR 52, LLC, NY Slip Op 06149 (1st Dep't November 6, 2025)

Here is the decision.

Motion for Renewal.

The court providently denied renewal, as defendant admitted that the documents it sought to introduce were previously available and failed to explain why they were not submitted in opposition to plaintiff's motion for summary judgment, pursuant to CPLR 2221[e][3].

134 Lexington, LLC v. Bhawani Maa, LLC, NY Slip Op 06125 (1st Dep't November 6, 2025)

Here is the decision.

The Law of Waiver.

A waiver is the voluntary abandonment or relinquishment of a known right.  A waiver is not created by negligence, oversight, or thoughtlessness, and cannot be inferred from mere silence, but, rather, the party claiming a waiver must proffer evidence of a voluntary and intentional relinquishment of a known and otherwise enforceable right. Contractual rights may be waived if they are knowingly, voluntarily, and intentionally abandoned,

Antebi v. Guindi, NY Slip Op 06044 (2d Dep't November 5, 2025)

Here is the decision.

Fraudulent Inducement.

The court properly granted summary judgment dismissing the fraudulent inducement cause of action, as the record establishes that plaintiff had the means of discovering, by the exercise of ordinary intelligence, the potential consequences of those terms of the agreement that it alleges caused it to suffer damages. It is significant that plaintiff is a sophisticated party. Moreover, plaintiff has not pleaded any specific misrepresentations or concealment.

Innovative  Sec., LTD. v. OBEX Sec. LLC, NY Slip Op 06023 (1st Dep't October 30, 2025)

Here is the decision.

Defamation.

 In an action to recover damages for libel or slander, "the particular words complained of shall be set forth in the complaint," pursuant to CPLR 3016[a]. The complaint must also allege the time when, place where, and manner in which the false statement was made, and specify to whom it was made. Compliance with CPLR 3016(a) is strictly enforced, and a cause of action sounding in defamation which fails to comply with these pleading requirements must be dismissed.

Marcigliano v. Coulianidis, NY Slip Op 05945 (2d Dep't October 29, 2025)

Here is the decision.

Appellate Practice.

Plaintiff's appeal from the order denying her motion to resettle, which Supreme Court treated as a motion to reargue, must be dismissed. Regardless of how the motion is characterized, no appeal lies from an order denying resettlement, clarification, or reargument.

Genna v. Klempner, NY Slip Op 06020 (1st Dep't October 30, 2025)

Here is the decision.

Auto Accidents.

A driver who fails to yield the right-of-way after stopping at a stop sign is in violation of Vehicle and Traffic Law § 1142(a), and is negligent as a matter of law. A driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision.

Canchari v. Goberdhan, NY Slip Op 05934 (2d Dep't October 29, 2025)

Here is the decision.

Adverse Possession.

In order to establish a claim of adverse possession, the occupation of the property must be (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of at least 10 years. As to the exclusivity element, the adverse possessor must alone care for or improve the disputed property as if it were his own. The hostility element is satisfied where an individual asserts a right to the property that is adverse to the title owner and also in opposition to the rights of the true owner. A claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, and can be founded on a written instrument.

Walters v. O'Quinn, NY Slip Op 05988 (2d Dep't October 29, 2025)

Here is the decision.

A Parent Corporation's Liability.

Absent complete domination and control over a wholly owned subsidiary, the parent corporation is exempt from liability for torts committed by the subsidiary.

Reyes v. 45 & 47 Wadsworth Ave. Co., LLC, NY Slip Op 06038 (1st Dep't October 30, 2025)

Here is the decision.

Piercing the Corporate Veil.

The courts will disregard the corporate form, or pierce the corporate veil, whenever necessary to prevent fraud or to achieve equity. A plaintiff seeking to pierce the corporate veil must show that (1) the owners exercised complete domination of the corporation in respect to the transaction attacked, and (2) that the domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff's injury. The mere claim that a corporation was completely dominated by its owners or conclusory claims that a corporation was the owners' alter ego do not merit the equitable relief of piercing the corporate veil. The court will consider factors such as whether there was a failure to adhere to corporate formalities, the lack of capitalization, co-mingling of assets, and the personal use of corporate funds.

Anderson v. ML Real Estate Holdings, LLC, NY Slip Op 05931 (2d Dep't October 29, 2025)

Here is the decision.