Summary judgment and discovery

A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment. A  party who contends that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts necessary to oppose the motion are exclusively within the knowledge and control of the movant, pursuant to CPLR 3212[f]. The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion.

Romano v. Welsbach Elec. Corp., NY Slip Op 00809 (2d Dep't February 11, 2026)

Here is the decision.

Civil conspiracy

Plaintiff's claim for civil conspiracy is dismissed with prejudice because New York does not recognize an independent cause of action for conspiracy.

Carvello v. Warner Music Group Corp., NY Slip Op 00635 (1st Dep't February 10, 2026)

Here is the decision.

Court holiday

Service of process

CPLR 308(4) requires due diligence in seeking to effectuate service on a defendant before resorting to nail-and-mail service. Generally, a plaintiff can establish diligence by providing an affidavit of service indicating efforts to serve the defendant at the defendant's residence on three different occasions, at different times of day. However, there is not the requisite due diligence where all of the dates of attempted personal service were during the work week and during normal business hours and in the same afternoon window.

Unitrin Safeguard Ins. Co, v. Della-Noce, NY Slip Op 00601 (1st Dep't February 5, 2026)

Here is the decision.

The emergency doctrine

The emergency doctrine provides that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or which is so reasonably disturbing that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context. Ordinarily, whether there was an emergency and whether the defendant's response was reasonable are questions of fact. However, summary judgment may be granted on the basis of sufficient evidence demonstrating both an emergency and the reasonableness of the actor's response to it.

Callands v. County of Westcheter, NY Slip Op 00489 (2d Dep't February 4, 2026)

Here is the decision.

Appellate practice

No appeal lies from an order refusing to sign an order to show cause, as it is an ex parte order that does not decide a motion made on notice, pursuant to CPLR 5701[a][2].

S.A.W. v. Archdiocese of N.Y., NY Slip Op 00603 (1st Dep't February 5, 2026)

Here is the decision.

Employment law

While an employer is not vicariously liable for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business, the employer may be liable under theories of negligent hiring, retention, or supervision of the employee.  A cause of action based on negligent hiring, retention, or supervision requires a showing that the employer knew or should have known of the employee's propensity for the conduct which caused the injury and that there is a connection between the defendant's negligence and the plaintiff's injuries.

BCVAWCH-Doe v. Roman Catholic Archdiocese of N.Y., NY Slip Op 00488 (2d Dep't February 4, 2026)

Here is the decision.

Sanctions for frivolous conduct

A court may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct, pursuant to 22 NYCRR 130-1.1(a). Conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false.

Aretakis v. CPEX Real Estate, LLC, NY Slip Op 00486 (2d Dep't February 4, 2026)

Here is the decision.

Motions to intervene

Failure to submit a proposed answer or other pleading is fatal to a motion to intervene, pursuant to CPLR 1014.

U.S. Bank, N.A. v. Brown, NY Slip Op 00483 (1st Dep't February 3, 2026)

Here is the decision.

Summary judgment

A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment. The 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 those 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.

Zihui Lin v. Cheng Liu, NY Slip Op 00403 (2d Dep't January 28, 2026)

Here is the decision.

Appellate practice

In this legal malpractice action, defendants' argument concerning litigation strategy and professional judgment was raised for the first time on appeal and, therefore,  is unpreserved.

Park W. Exec. Servs., Inc. v. Gallo Vitucci & Klar, LLP, NY Slip Op 00428 (1st Dep't January 29, 2026)

Here is the decision.

Motions for summary judgment

The party moving for summary judgment bears the initial burden to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. A moving defendant cannot satisfy this burden merely by pointing to gaps in the plaintiff's case; it must affirmatively demonstrate the merits of its defense.

Chin v. Pacific 10, LLC, NY Slip Op 00343 (2d Dep't January 28, 2026)

Here is the decision.

Appellate practice

An issue is properly before the Appellate Division where the defendants did not raise it until their reply papers, but raised it in their opening brief on appeal and plaintiff, without objecting, responded to it substantively.

Fernandez v. Sukhdeep, NY Slip Op 00422 (1st Dep't January 29, 2026)

Here is the decision.

Contract law

A contractual provision assuming an obligation to indemnify a party for attorneys' fees must be strictly construed so as to avoid reading into it a duty which the parties did not intend to be assumed.

23-35 Bridge St., LLC v. Excel Automotive Tech Ctr., Inc., NY Slip Op 00337 (2d Dep't January 28, 2026)

Here is the decision.

Leave to amend

It is well-settled that leave to amend shall be freely given absent prejudice or surprise, pursuant to CPLR 3025[b]. The movant need not establish the merit of its proposed new allegations, but must simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit.

Peck v. Milbank LLP, NY Slip Op 00322 (1st Dep't January 27, 2026)

Here is the decision.

Appellate practice

Dismissal of the appeal is warranted as to the parties that were not aggrieved by the order on appeal, pursuant to CPLR 5511. While the order may contain language or reasoning that these parties consider adverse to their interests, that does not accord them standing to take an appeal.

Rodriguez v. CB Devs., NY Slip Op 00326 (1st Dep't January 22, 2026)

Here is the decision.

Contract law

A contract may be voided on the ground of economic duress where the complaining party was compelled to agree to its terms by means of a wrongful threat which precluded the exercise of its free will. Financial pressure and an unequal bargaining position do not constitute economic duress. The threatened party must establish that it could not obtain the goods from another source of supply and that the ordinary remedy of an action for breach of contract would be inadequate.

Southern Israel Bridging Fund Two, L.P. v. Orgenesis, Inc., NY Slip Op 00328 (1st Dep't January 22, 2026)

Here is the decision.

Dismissal as abandoned

CPLR 3215(c) directs that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative . . . , unless sufficient cause is shown why the complaint should not be dismissed." However, pursuant to CPLR 3408(n), the one-year deadline is tolled while mandatory settlement conferences are pending.

Bank of Am., N.A. v. Keefer, NY Slip Op 00231 (2d Dep't January 21, 2026)

Here is the decision.

Contract law

The right to assert a fraud or other tort claim related to a contract or note does not automatically transfer with the respective instrument. There must be some language - although no specific words are required - to evince the parties' intent and effectuate the conveyance of such a right. 

BH 336 Partners LLC v. Sentinel Real Estate Corp., NY Slip Op 00305 (1st Dep't January 22, 2026)

Here is the decision.

Striking a pleading

Supreme Court providently exercised its discretion in denying plaintiff's motion to strike defendants' pleadings, pursuant to CPLR 3126. The record does not demonstrate that defendants' conduct was clearly willful and contumacious so as to warrant such a harsh sanction.

Naramore v. Mount Sinai Health Sys., Inc., NY Slip Op 00226 (1st Dep't January 20, 2026)

Here is the decision.

Jurisdiction

The Supreme Court does not have subject matter jurisdiction over a collateral attack on personal jurisdiction in a prior action. If personal jurisdiction over a party was not properly obtained in an earlier action, its remedy is to move to vacate the default judgment in that action, pursuant to CPLR 5015[a][4].

224 Lefferts Ave. Hous. Dev. Fund Corp. v. Haile, NY Slip Op 00227 (2d Dep't January 21, 2026)

Here is the decision.

Commercial litigation

Supreme Court improperly dismissed the misappropriation of trade secrets cause of action as asserted against the individual defendants. Supreme Court considered only whether they completely dominated the corporation with respect to the transaction at issue, and found no basis to pierce the corporate veil. However, even where the corporate veil is not pierced, a corporate officer who participates in and benefits from the commission of a tort may  be held individually liable. There is sufficient evidence that the individual defendants, for their personal gain, participated in the corporate defendant's allegedly tortious acts, thus raising issues of material fact as to their personal liability. The claim for misappropriation of trade secrets as against them is reinstated.

Century First Credit Solutions, Inc. v. Priority Capital, LLC, NY Slip Op 00224 (1st Dep't January 20, 2026)

Here is the decision.

Motions to vacate

In support of their motion, the defendants proffered only conclusory and unsubstantiated allegations of law office failure, which did not constitute a reasonable excuse for their default in appearing or answering the complaint.

Victory Blvd Assoc., LLC v. Pillars Funding, LLC, NY Slip Op 00170 (2d Dep't January 14, 2026)

Here is the decision.

Leave to amend

Leave to amend the complaint is denied, as plaintiff has not identified any additional, potentially outcome-changing facts to be included in the amendment, pursuant to CPLR 3025[b].

B.B. v. Cosby, NY Slip Op 00187 (1st Dep't January 15, 2026)

Here is the decision.

Agency law

A corporate officer who executes a contract acting as an agent for a disclosed principal is not liable for a breach of the contract in the absence of clear and explicit evidence of the agent's intention to be personally liable.

Delco Dev. Co. of Hicksville, L.P. v. Shoes Etc., Inc., NY Slip Op 00116 (2d Dep't January 14, 2026)

Here is the decision.

Breach of fiduciary duty

The elements of the cause of action are: (1) the existence of a fiduciary relationship; (2) misconduct by the defendant; and (3) damages directly caused by the defendant's misconduct. An attorney owes a fiduciary duty to the client, namely, to deal with the client fairly, honestly and with undivided loyalty, while maintaining confidentiality, avoiding conflicts of interest, acting competently, safeguarding client property, and honoring the clients' interests over the attorney's own.

Brennan v. Vasquez, NY Slip Op 00115 (2d Dep't January 14, 2026)

Here is the decision.

Spoliation

Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned. The party seeking sanctions must show that the party having control over the evidence was obligated to preserve it and that the evidence was destroyed either deliberately or negligently. If the evidence was destroyed negligently, the movant must demonstrate that it was relevant to its claim or defense.

Battle v. Fulton Park Site 4 Houses, Inc., NY Slip Op 00114 (2d Dep't January 14, 2026)

Here is the decision.

Hearsay rule

 The business record exception to the hearsay rule applies to a writing or record, pursuant to CPLR 4518[a]. It is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Absent the introduction of the records themselves, witness testimony as to the contents of the records is inadmissible hearsay.

B of I Fed. Bank v. Aramalla, NY Slip Op 00112 (2d Dep't January 14, 2026)

Here is the decision.

Appellate practice

No appeal lies from an order entered upon default of the appealing party. Defendants moved to dismiss plaintiff's discrimination claims but failed to appear for oral argument on the motion. The proper procedure is for defendants to move to vacate the default, proffering a reasonable excuse and meritorious grounds for the motion, pursuant to CPLR 5015[a][1].

Perez v. Norman's Cay Group, LLC, NY Slip Op 00222 (1st Dep't January 15, 2026)

Here is the decision.

Failure to oppose a motion

A party seeking to vacate an order entered upon a default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion. The court may accept a detailed and credible explanation of law office failure as a reasonable excuse in support of the motion to vacate.

Ackerson Bldrs., LLC v. Corbett, NY Slip Op 00111 (2d Dep't January 14, 2026)

Here is the decision.

Premises liability

A landowner owes a duty of care to maintain its property in a reasonably safe condition. The duty is premised on the landowner's exercise of control over the property, as the person in possession and control of  a property is best able to identify and prevent any harm to others. A landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property. However, an out-of-possession landlord may be liable for injuries occurring on the premises if it has retained control of the premises, is contractually obligated to perform maintenance and repairs, or is obligated by statute to perform such maintenance and repairs.

Yongxi Li v. Pei Xing Huang, NY Slip Op 07432 (2d Dep't December 31, 2025)

Here is the decision.

Appellate practice

The factual argument that plaintiffs pursue on appeal is not the same one that they made before Supreme Court, and so the argument is not properly before the Appellate Division.

Continuum Energy Tech., LLC v. Iron Oak, Inc., NY Slip Op 00053 (1st Dep't January 8, 2026)

Here is the decision.

Motions for summary judgment

Since the defendant failed to eliminate all triable issues of fact, the Supreme Court properly denied his motion, regardless of the sufficiency of the plaintiff's opposition papers.

Delos-Santos v. Kaisman, NY Slip Op 07377 (2d Dep't December 31, 2025)

Here is the decision.

Contract law

Extrinsic evidence may be considered in assessing the implied covenant claim, even if not relevant to the breach of contract claim.

AMF Trust Ventures, LLC v. 180 Group, LLC, NY Slip Op 00073 (1st Dep't January 8, 2026)

Here is the decision.

Failure to answer

A defendant''s submission of an affirmation, instead of an affidavit, to present his reasonable excuse for not answering the complaint, was a mere technical procedural irregularity which can be disregarded, pursuant to CPLR 2001, 2101[f]. Plaintiffs waived any objection to the form of the submission by failing to return it within 15 days of receipt, pursuant to CPLR 2101[f]. To the extent that the defendant was required to cure the defect, he did so by ultimately serving an affidavit, which the court had discretion to accept pursuant to CPLR 2001.

S.G. v. New York City Health & Hosps. Corp., NY Slip Op 00068 (1st Dep't January 8, 2026)

Here is the decision.

Law of the case

The doctrine of the law of the case seeks to prevent litigation of issues of law that have already been determined at an earlier stage of the proceeding.  The 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.

Cotto v. Robinson, NY Slip Op 07374 (2d Dep't December 31, 2025)

Here is the decision.

Amending a pleading

Plaintiffs were permitted to amend their complaint as of right, pursuant to CPLR 3025[a]. As such, Supreme Court correctly applied defendant's pending motion to dismiss to the amended complaint because the original complaint was superseded. The motion for leave to amend to remove two lines from the amended complaint that were included in error, filed within a week of the amended pleading, was providently granted, pursuant to CPLR 3025[b]. 

Daniel Szalkiewicz & Assoc., P.C. v. Liu, NY Slip Op 07346 (1st Dep't December 30, 2025)

Here is the decision.

Motions to dismiss

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory. Claims consisting of bare legal conclusions with no factual specificity are insufficient to survive the motion. Dismissal is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery.

Byington v. North Sea Assoc., LLC, NY Slip Op 07372 (2d Dep't December 31, 2025)

Here is the decision.

Defamation

The elements of a cause of action for 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. A statement constitutes defamation per se if it tends to injure the plaintiff's trade, business, or profession.

Only statements alleging facts can be the subject of a defamation action because only facts are capable of being proven false, and falsity is a necessary element of defamation. In distinguishing between statements of fact and those of pure opinion, it is necessary to consider the writing as a whole, including its tone and apparent purpose, as well as the overall context of the publication, to determine whether the reasonable reader would have believed that the challenged statements were conveying facts about the plaintiff.

An expression of pure opinion is not actionable no matter how vituperative or unreasonable it may be. Where a statement of pure opinion implies that it is based upon undisclosed facts which justify the opinion, it is actionable because a reasonable listener or reader would infer that the speaker or writer knows certain facts, unknown to the audience, which support the opinion and are detrimental to the person toward whom the communication is directed. Where, however, the opinion recites the facts upon which it is based without implying the existence of additional, undisclosed facts, that statement is not actionable.

Biagini Realty v. Brightman, NY Slip Op 07371 (2d Dep't December 31, 2025)

Here is the decision.

Adding a defendant

The court may consider a motion to add a defendant even though the proposed additional defendant had not been served with a copy of the motion.

Acevedo v. 439 Realty Corp., NY Slip Op 07370 (2d Dep't December 31, 2025)

Here is the decision.

Contract law

A corporation's by-laws constitute a contract between the corporation and its members. The members impliedly agree that the by-laws are determinative of the members' rights and status in relation to the corporation.

Matter of Min Wu v. Institute of Elec. and Elecs. Engrs. Inc., NY Slip Op 07347 (1st Dep't December 30, 2025)

Here is the decision.

Leave to renew

A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination, and must offer a reasonable justification for the failure to present the new facts on the prior motion. The new or additional facts presented either must have not been known to the party seeking renewal or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion. While it is within the court's discretion to grant leave upon facts known to the moving party at the time of the prior motion, a motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.

Jesan Constr. Group, LLC v. Bedford Mer, LLC, NY Slip Op 07290 (2d Dep't December 24, 2025)

Here is the decision.

Recusal

The motion for recusal is denied where the movant failed to argue that any alleged bias, prejudice, or unworthy motive affected any of the court's rulings. Moreover, none of the alleged bases for recusal was sufficient to show that the court was incapable of being impartial.

Alfred v. Brutus, NY Slip Op 07333 (1st Dep't December 30, 2025)

Here is the decision.

Notices of claim

Court of Claims Act § 10(6) permits a court, in its discretion, to allow a claimant to file a late claim. In exercising its discretion, the court shall consider whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim resulted in substantial prejudice to the state; and whether the claimant has any other available remedy. 'No one factor is deemed controlling, nor is the presence or absence of any one factor determinative. However, if a claim is legally deficient, leave to file a late claim should be denied even if the other factors favor the granting of the request.

Notice of the essential facts constituting the claim requires knowledge of the facts that underlie the legal theory or theories on which liability is predicated, and not merely notice of the accident itself.

Kissoon v. State of New York, NY Slip Op 07292 (2d Dep't December 24, 2025)

Here is the decision.

Happy New Year at Columbus Circle