Employment law

Under the common-law doctrine of respondeat superior, an employer - including the State - may be held vicariously liable for torts, including intentional torts, committed by employees acting within the scope of their employment, provided that the tortious conduct is generally foreseeable and a natural incident of the employment. In determining whether an employee was acting within the scope of employment for purposes of vicarious liability, courts look to several factors, including the connection between the time, place, and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated. In cases involving a use of force, whether an employee is acting within the scope of employment requires consideration of whether the employee was authorized to use force to effectuate the goals and duties of the employment.

Bracero v. State of New York, NY Slip Op 01484 (2d Dep't March 18, 2026)

Here is the decision,.

Discovery

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. The supervision of discovery and the setting of reasonable terms and conditions are within the sound discretion of the trial court. Personnel records are discoverable where the plaintiff alleges a cause of action to recover damages for negligent hiring, retention, or supervision.

Black v. Archdiocese of N.Y., NY Slip Op 01483 (2d Dep't March 18, 2026)

Here is the decision.

Assumption of the risk

Under the primary assumption of risk doctrine,  a person who chooses to participate in a sport or recreational activity consents to certain risks that are inherent in and arise out of the nature of the sport and that flow from such participation. In order to invoke the doctrine, it is not necessary that the injured plaintiff foresaw the exact manner in which the injury occurred, as long as the plaintiff was aware of the potential for injury of the mechanism from which the injury resulted.

T.A. v. Town of Riverhead, NY Slip Op 01480 (2d Dep't March 18, 2026)

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Appellate practice

CPLR 5526 requires that a record on appeal contain the papers and exhibits upon which the order appealed from was founded. It is the obligation of the appellant to assemble a proper record on appeal.

United Store Fixtures & Importers Corp. v. New York City Economic Dev. Corp., NY Slip Op 01395 (2d Dep't March 11, 2026)

Here is the decision.

Jurisdiction

Pursuant to CPLR 5015(a)(4), "[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person . . . upon the ground of . . . lack of jurisdiction to render the judgment or order." Where a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), and seeks a discretionary vacatur pursuant to CPLR 5015(a)(1), the court must resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1).

U.S. Bank, N.A. v. Warner 26, Inc., NY Slip Op 01393 (2d Dep't March 11, 2026)

Here is the decision.

Motions to dismiss

In order to dismiss on the basis of a prior action pending, pursuant to CPLR 3211(a), a court needs to find substantial, not complete, identity of the parties across the relevant actions and that both actions arise out of the same subject matter or series of alleged wrongs.

Gray v. Nassau Life Ins. Co., NY Slip Op 01403 (1st Dep't March 12, 2026)

Here is the decision.

Premises liability

An owner of a baseball field is not an insurer of the safety of its spectators, but as with any other owner of occupier of land, it is only under a duty to exercise reasonable care under the circumstances to prevent injury to those who come to watch the games being played on its field.

Swanson v. Queens Ballpark Co., LLC, NY Slip Op 01392 (2d Dep't March 11, 2026)

Here is the decision.

Defaults

A defaulting defendant is deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow therefrom.

Schreiber v. Nissan Lift of N.Y., Inc., NY Slip Op (2d Dep't March 11, 2026)

Here is the decision.

Unjust enrichment claims

The plaintiff must allege that (1) the other party was enriched, (2) at the plaintiff's expense, and (3) it is against equity and good conscience to permit the other party to retain what is sought to be recovered. The plaintiff must establish that it conferred a benefit on the other party and that the other party will retain that benefit without adequate compensation. There must be a showing of reliance, and the claim is based on an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties. While privity is not required, the cause of action will not be supported if the connection between the parties is too attenuated. Further, the claim is not available where it simply duplicates or replaces a conventional contract or tort claim.

Ryan v. Guadagnino, NY Slip Op 01390 (2d Dep't March 11, 2026)

Here is the decision.

Contract law

The threshold question with respect to any contract-based cause of action is whether a binding contract was ever formed. In order to create a binding contract, there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms. Courts look to the basic elements of the offer and acceptance to determine whether there is an objective meeting of the minds sufficient to give rise to a binding and enforceable contract. An offer not given for consideration may be revoked at any time, and the moment of acceptance is the moment the contract is created. In the case of a contract conveying an interest in real property, the statute of frauds requires that an agreement be reduced to a written instrument signed by the party against whom the plaintiff seeks to enforce the agreement. Here, the contract lacked the signature of one of the sellers and so no binding and enforceable contract was formed.

Real-X Realty, LLC v. Crest Bellport, LLC, NY Slip Op 01389 (2d Dep't March 11, 2026)

Here is the decision.

A court's inherent authority

A court has the inherent discretionary authority to vacate its own order in the interests of substantial justice when unique or unusual circumstances warrant such relief. A court's exercise of its inherent authority to vacate an order or judgment in the interests of substantial justice should ordinarily be reserved for instances involving evidence of fraud, mistake, inadvertence, surprise, or excusable neglect.

Brown-Wilks v. Vornado Realty Trust, NY Slip Op 01179 (2d Dep't March 4, 2026)

Here is the decision.

An insufficient fraud claim

The court properly dismissed plaintiffs' fraud claim, which is premised largely on allegations made on information and belief and fails to identify any materially false representations on which plaintiffs had relied.

SKYX Group Inc. v. Foundation for a Smoke-Free World, NY Slip Op 01330 (1st Dep't March 10, 2026)

Here is the decision.

Hearsay exceptions

Plaintiff's post-accident statements to his domestic partner and to the responding police officer that he fell on the defendant's scaffolding on the sidewalk are not admissible under the exceptions to the rule against hearsay as excited utterances or present-sense impressions. The statements were not contemporaneous with the incident, nor were they made while plaintiff was still under the stress of excitement after the fall.

Schiff v. Intersystem S&S Corp., NY Slip Op 01294 (1st Dep't March 5, 2026)

Here is the decision.

Vacatur

A party seeking to vacate an order or judgment 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, pursuant to CPLR 5015[a][1]. The court has discretion to accept law office failure as a reasonable excuse, pursuant to CPLR 2005, where there a detailed and credible explanation.

Black v. Taub, NY Slip Op 01177 (2d Dep't March 4, 2026)

Here is the decision.

Vexatious litigants

On an ample basis in the record, the court may direct a plaintiff to obtain judicial approval before engaging in further vexatious litigation.

Aziz v. Butt, NY Slip Op 01176 (2d Dep't March 4, 2026)

Here is the decision.

Commercial litigation

In order to establish a cause of action under General Business Law § 349, a plaintiff must allege that (1) the defendant's conduct was consumer oriented; (2) the act or practice was deceptive or misleading in a material way; and (3) there was an injury as a result of the deception. Private contract disputes, unique to the parties, do not fall within the ambit of the statute. A single transaction which is tailored to meet the purchaser's wishes and requirements does not constitute consumer-oriented conduct within the meaning of the statute.

Axos Bank v. Michael Gangi Plumbing & Heating Contrs., Inc., NY Slip Op 01175 (2d Dep't March 4, 2026)

Here is the decision.

Defamation

While the complaint adequately alleged the unauthorized, knowing, or reckless publishing of a false statement, the statement was not defamatory. Defendant's statement that plaintiff was "lying" was made in the context of a credit card chargeback dispute with plaintiff, who was defendant's customer. The statement, when viewed in this context, and viewed along with the remainder of defendant's written comment to the credit card company, constitutes non-actionable opinion.

Friedman v. Garnet Wine & Liqs., Inc., NY Slip Op 01161 (1st Dep't March 3, 2026)\

Here is the decision.

Account stated and quantum merit

Summary judgment on defendant's counterclaims for account stated and quantum merit is granted, as defendant demonstrated that plaintiff received, retained without objection, and partially paid invoices without protest.

North Flats, LLC v. Belkin Burden Goldman, LLP, NY Slip Op 01165 (1st Dep't March 3, 2026)

Here is the decision.

Amending a pleading

Applications to amend pleadings are within the sound discretion of the court. An application should be freely granted, absent prejudice or surprise directly resulting from a delay in seeking leave, unless the proposed amendment is palpably insufficient or patently devoid of merit, pursuant to CPLR 3025[b]. A proposed amendment that is time-barred is patently devoid of merit.

Becvar v. Our Lady of Consolation Nursing & Rehabilitation Ctr., NY Slip Op 01026 (2d Dep't February 25, 2026)

Here is the decision.

Binding stipulations

Defendants' argument that the judgment of foreclosure and sale should be vacated pursuant to CPLR 5015(a)(1) is unavailing, as the record reveals that defendants, through their counsel, consented to the entry of summary judgment in plaintiff's favor by attorney stipulation. The court properly declined to set aside the stipulation. Defendants contend that their counsel lacked authority to enter into a stipulation consenting to summary judgment, but a settlement agreement signed by an attorney may bind a client even where it exceeds the attorney's actual authority, if the attorney had apparent authority to enter into the agreement. Defendants failed to present any evidence that their former counsel, their attorney of record at the time of the stipulation, lacked apparent authority to sign the stipulation on their behalf. He was fully authorized to appear in the action on defendants' behalf and was in regular contact with them at all relevant times. In any event, defendants ratified the terms of the stipulation by failing to object to it for more than a year.

Defendants alternatively argue that judgment should be vacated in the interests of justice based on the payment they made to plaintiff, which they believed was for the purpose of curing their default, but that issue is unrelated to whether the stipulation is binding.

Global Bank v. 43 Mott Realty Owner, LLC, NY Slip Op 01125 (1st Dep't February 26, 2026)

Here is the decision.

Trial procedure

It is well-established that trial courts have broad authority to control courtroom proceedings. When an adverse party is called as a witness on the other party's case in chief, the court may permit the use of leading questions against that witness upon a showing of hostility, adversity, evasiveness, or uncooperativeness. 

Matter of Sheltering Arms Children's Servs. v. Yiweiz, NY Slip Op 01146 (1st Dep't February 26, 2026)

Here is the decision.

Notes of issue

When a plaintiff has failed to file a note of issue by a court-ordered deadline, the granting of a motion to restore the action to the active calendar is automatic, unless either a 90-day notice has been served pursuant to CPLR 3216 or there has been an order directing dismissal of the complaint pursuant to 22 NYCRR 202.27. In either of those circumstances, the court will consider whether the plaintiff had a reasonable excuse for failing to timely file the note of issue.

Alnoukari v. Nokari, NY Slip Op 01025 (2d Dep't February 25, 2026)

Here is the decision.