Relation-back doctrine

The relation-back doctrine permits the commencement of claims against a party that has not been timely sued, but which relate back to the original timely complaint. A plaintiff must establish all three prongs of a three-part test for the addition of untimely claims or parties: (1) the new claims arise out of the same conduct, transaction, or occurrence as that alleged in the original complaint; (2) the party to be added must be united in interest with one or more of the original defendants, and by reason of that relationship can be charged with such notice of the institution of the action that it will not be prejudiced in defending the action on the merits; and (3) the newly-added defendant knew, or should have known, that the action would have been timely commenced against it but for a mistake by the plaintiff as to the identity of the proper parties.

DiMiceli v. Credit Shelter Trust, NY Slip Op 02391 (2d Dep't April 23, 2026)

Here is the decision.

Recusal

The assigned Justice was not a party to and had not been an attorney in this proceeding, and petitioner does not contend that the Justice had an interest in the proceeding or was related to the parties.  It is of no consequence that the Justice was represented by the Office of the Attorney General in unrelated litigation before the Appellate Division. In the absence of any statutorily mandated disqualification and any legitimate suggestion of bias or impartiality, the assigned Justice's decision not to recuse was appropriate.

Matter of DuBose v. City of New York, NY Slip Op 02449 (1st Dep't April 23, 2026)

Here is the decision.

Appellate practice

Before filing the notice of appeal, the appellant failed to appear in this action and did not oppose either the motion for a default judgment and an order of reference or the motion for an order confirming the Referee's report and granting a final judgment of foreclosure and sale. Accordingly, the appellant is not aggrieved by Supreme Court's grant of plaintiff's motions, and may not appeal from the resulting orders. The Appellate Division need not consider the appellant's arguments for affirmative relief.

Deutsche Bank Natl. Trust Co. v. Adekola, NY Slip Op 02448 (1st Dep't April 23, 2026)

Here is the decision.

Declaratory judgments

Pursuant to CPLR 3001, "[t]he supreme court may render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy." The demand for relief in the complaint must specify the rights and other legal relations on which the declaration is requested, pursuant to CPLR 3017[b]. On a motion to dismiss the complaint, the issue is whether a cause of action for declaratory relief has been stated, not whether the plaintiff is entitled to a favorable declaration.

Cox v. First Citizens Bancshares, Inc., NY Slip Op 02388 (2d Dep't April 22, 2026)

Here is the decision.

Contract law

Choice of law provisions typically apply only to substantive issues. In the absence of an express intention that a specific statute of limitations is to apply to the dispute, a choice of law provision cannot be read to encompass the limitations period.

Cincinnati Terrace Member LLC v. Tartar Krinsky & Drogin LLC, NY Slip Op 02369 (1st Dep't April 21, 2026)

Here is the decision.

Summary judgment motions

An affidavit submitted in opposition to the motion that merely raises what appear to be feigned issues of fact designed to avoid the consequences of earlier deposition testimony is insufficient to defeat summary judgment.

Brener v. Queens Blvd. Extended Care Facility Corp., NY Slip Op 02240 (2d Dep't April 15, 2026)

Here is the decision.

Appellate practice

Supreme Court effectively granted plaintiff's motion for leave to reargue when it considered the merits of the motion. Therefore, it is reviewable on appeal.

Feifei Gu v. Henry, NY Slip Op 02332 (1st Dep't April 16, 2026)

Here is the decision.

Motions to dismiss

Bare legal conclusions with no factual specificity in the complaint are insufficient to survive a motion to dismiss.

Berl v. CNH Operating, LCC, NY Slip Op 02238 (2d Dep't April 15, 2026)

Here is the decision.

Discovery disputes

The supervision of discovery and the setting of reasonable terms and conditions for disclosure are matters within the sound discretion of the trial court, as is the determination whether to strike a pleading and the nature and degree of any sanction to be imposed.  The striking of a party's pleading is a drastic remedy that is warranted only on a clear showing of a willful and contumacious failure to comply with discovery demands.

American Tr. Ins. Co. v. Hackensack Surgery Ctr., LLC, NY Slip Op 02235 (2d Dep't April 15, 2026)

Here is the decision.

Dismissal on the ground of documentary evidence

Plaintiff seeks to hold defendant liable for allegedly fraudulently inducing it to purchase real property. At the closing, defendant executed a certification concerning six apartments in the property, swearing that "no rent has ever been paid by the occupants" of the apartments, and alleging that the occupants of the apartments "are not tenants." However, schedule 8.1(k) in the closing binder set forth the "actual rents billed by [defendant] to the tenants of the premises."

The complaint is dismissed, pursuant to CPLR 3211[a][1], as the documentary evidence conclusively refutes the cause of action. The parties' purchase and sale agreement contained a merger clause, which incorporated the terms of schedule 8.1(k) into the agreement. Further, plaintiff agreed to purchase the property "as is" and "where is." These terms in the parties' agreement bar plaintiff's claim arising out of reliance on the purported misrepresentations.

ABJ 105, LLC v. Martinez, NY Slip Op 02327 (1st Dep't April 16, 2026)

Here is the decision.

Dismissal as time-barred

Pursuant to CPLR 3211(a)(5), a moving defendant must establish, prima facie, that the time within which to commence an action has expired. On this threshold showing, the burden shifts to the party opposing the motion to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether the action was actually commenced within the limitations period.

Parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations. An agreement which modifies the limitations period by specifying a shorter, but reasonable, period within which to commence an action is enforceable provided it is in writing.

Extech Bldg. Materials, Inc. v. J Cos., LLC, NY Slip Op 01770 (2d Dep't March 25, 2026)

Here is the decision.

Employment law

Under the common-law doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by employees acting within the scope of their employment. The employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment. An employer is not liable for assaults or other criminal acts committed by an employee under the theory of respondeat superior where those acts are not in furtherance of the business or within the scope of the employment.

Doe v. Yeshiva of Brooklyn, NY Slip Op 01769 (2d Dep't March 25, 2026)

Here is the decision.

Service of process

Pursuant to CPLR 306-b, a court may, in the exercise of its discretion, grant an extension of time within which to effect service for good cause shown or in the interest of justice. In order to establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service. The more flexible interest of justice standard accommodates late service that might be due to mistake, confusion, or oversight, as long as there is no prejudice to the defendant. In considering the interest of justice standard, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to the defendant.

Deutsche Bank Natl. Trust Co. v. Groder, NY Slip Op 01767 (2d Dep't March 25, 2026)

Here is the decision.

Writs of mandamus

Mandamus does not lie to compel a discretionary act rather than a ministerial one, pursuant to CPLR 7803[1].

Matter of Gomez v. New York City Dept. of Bldgs., NY Slip Op 01915 (1st Dep't March 31, 2026)

Here is the decision.

Contract law

In New York, all contracts imply a covenant of good faith and fair dealing in the course of performance. The covenant is a pledge that neither party will do anything which will have the effect of destroying or injuring the other party's right to the fruit of the contract, even if the contractual terms do not explicitly prohibit such conduct. The duty of good faith and fair dealing is not without limits, and no obligation can be implied that would be inconsistent with other terms of the contractual relationship.

Zormati v. Citibank, N.A., NY Slip Op 01821 (2d Dep't March 25, 2026)

Here is the decision.

Appellate practice

Generally, an argument may not be raised for the first time on appeal. There is an exception for a pure question of law, evident on the face of the record, which could not have been avoided if it had been  raised at the proper point.

Citimortgage, Inc. v. Weaver, NY Slip Op 01760 (2d Dep't March 25, 2026)

Here is the decision.

Motions to discontinue

The mere pendency of a motion for summary judgment is not itself a special circumstance warranting denial of a motion to discontinue, pursuant to CPLR 3217(b).

Canara Bank, London Branch v. MVP Group Intl., Inc., NY Slip Op 01868 (1st Dep't March 26, 2026)

Here is the decision.

Appellate practice

Plaintiffs do not address the merits of the order on appeal or the sanctions it imposed. Therefore, plaintiffs' appeal from that order is deemed abandoned and is dismissed.

Drew v. U-Haul Intl., Inc., NY Slip Op 01914 (1st Dep't March 31, 2026)

Here is the decision.

A court's continuing jurisdiction

During the pendency of an action, courts retain continuing jurisdiction to reconsider their prior interlocutory orders. So, the court may properly exercise its discretion to consider an untimely motion to reargue.

Daniello v. J.T. Magen & Co., Inc., NY Slip Op 01913 (1st Dep't March 31, 2026) 

Here is the decision.

Contract law

The best evidence of what the parties to an agreement intended is what they set forth in their writing. When interpreting a contract, the court must read the document as a whole to determine the parties' purpose and intent, giving a practical interpretation to the language used so that the parties' reasonable expectations are realized. The conclusion that a party's promise should be ignored as meaningless is, at best, a last resort.  The statute of limitations for a cause of action alleging breach of contract is six years, and the cause of action accrues at the time of the breach.

Breslin Brookhaven, LLC v. Rose, NY Slip Op 01756 (2d Dep't March 25, 2026)

Here is the decision.

Declaratory judgments

A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration. The general purpose of the declaratory judgment is to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations. Where a cause of action is sufficient to invoke the court's power to render a declaratory judgment as to the rights and other legal relations of the parties to a justiciable controversy, a motion to dismiss that cause of action should be denied.

Breslin Brookhaven, LLC v. Rose, NY Slip Op 01757 (2d Dep't March 25, 2026)

Here is the decision.

Evidentiary matters

In this personal injury action, any shortcomings in the witnesses' memory or perception merely go to credibility and the weight of the evidence, not its competence. The value to be accorded to the evidence is a matter for resolution by the trier of fact.

Pichardo v. George Units, LLC, NY Slip Op 01926 (1st Dep't March 31, 2026)

Here is the decision.

Suing John Doe

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. If the name or remainder of the name becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly." In order to be effective, a summons and complaint must describe the unknown party in such a manner that the John Doe would understand that he is the intended defendant by a reading of the papers. An insufficient description subjects the John Doe complaint to dismissal for being jurisdictionally defective. Parties may not resort to the John Doe procedure unless, prior to the running of the statute of limitations, they exercise due diligence to identify the defendant by name and, despite such efforts, are unable to do so. Any failure to exercise due diligence to ascertain the John Doe's name subjects the complaint to dismissal as to that party.

M.C.-B v. County of Suffolk, NY Slip Op 01758 (2d Dep't March 25, 2026)

Here is the decision.

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