Indemnification

A party bringing a common-law indemnification claim does not need to have a contractual relationship with the proposed indemnitor. However, the indemnitee's obligation to pay the plaintiff must be predicated either on liability by operation of law, such as vicarious liability, or on an existing relationship between the indemnitor and the indemnitee, such as in the case of a guarantor and principal. The key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but is a separate duty owed the indemnitee by the indemnitor.

Fidelity Natl. Tit. Ins. Co. v. Sky Abstract Corp., NY Slip Op 05145 (1st Dep't August 27, 2026)

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Contract law

A defendant's contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party. There are exceptions to the general rule. A contracting party can assume a duty of care toward a third party where: 1) the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm; 2) the plaintiff detrimentally relies on the continued performance of the contracting party's duties; or 3) the contracting party has entirely displaced the other party's duty to maintain the premises safely.

Carrero-Santiago v. Asphalt Green, Inc., NY Slip Op 05144 (1st Dep't August 27, 2026)

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Anti-suit injunctions

The court's power to issue an anti-suit injunction is rarely and sparingly employed. The injunction will issue only if there is danger of fraud or gross wrong being perpetrated on the foreign court.

Astraea NYNY, LLC v. Ganley, NY Slip Op 05143 (1st Dep't August 27, 2026)

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Failure to oppose

In order to vacate its default in timely opposing the plaintiffs' motion, the defendant was required to demonstrate a reasonable excuse for the default, as well as a potentially meritorious opposition to the motion, pursuant to CPLR 5015[a][1]. While CPLR 2005 allows courts to excuse a default due to law office failure, it was not the Legislature's intent to routinely excuse such defaults, and mere neglect will not be accepted as a reasonable excuse. Here, the Supreme Court did not improvidently exercise its discretion in rejecting the defendant's conclusory excuse of law office failure, which was part of a pattern of neglect demonstrated by the defendant during discovery.

Aladin v. Kensington Ins.Co., NY Slip Op 05067 (2d Dep't August 26, 2026)

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Premises liability

A landowner owes a duty of care to maintain the property in a reasonably safe condition. However, an out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct. Even if a defendant is considered an out-of-possession landlord who assumed the obligation to make repairs to its property, it cannot be held liable for injuries caused by a defective condition on the property unless it either created the condition or had actual or constructive notice of it.

Bracey v. 107-47 Sutphin, LLC, NY Slip Op 05003 (2d Dep't August 19, 2026)

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Appellate practice

The order is appealable, pursuant to CPLR 5511. It was not entered upon the defendants' default because, although the Supreme Court noted that it was entitled to disregard the defendants' untimely opposition papers, it considered the merits of the defendants' opposition. The appeal is not academic because its determination would directly affect the rights of the parties.

Bank of Am., N.A. v. Ragnauth, NY Slip Op 05001 (2d Dep't August 19, 2026)

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Default judgments

A plaintiff seeking leave to enter a default judgment must file proof of proper service of the summons and the complaint, the defendant's default, and the facts constituting the claim. A default judgment in a declaratory judgment action will not be granted on the default and pleadings alone, as it is necessary that plaintiff establish the right to a declaration.

Allstate Ins. Co,. v. Cabrera, NY Slip Op 05000 (2d Dep't August 19, 2026)

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Jurisdiction

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 is required to resolve the jurisdictional question before determining whether it is appropriate to grant the vacatur.

Allen v. Tilak, NY Slip Op 04999 (2d Dep't August 19, 2026)

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Contract law

In order to recover damages for breach of contract, the plaintiff must demonstrate that there is a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach. A contract is to be construed in accordance with the parties' intent, which is discerned from the four corners of the document. Consequently, a written agreement that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms. Contract language is ambiguous when it is reasonably susceptible of more than one interpretation, and extrinsic or parol evidence may be considered to determine the parties' intent.

206 Rte. 59 Holdings, LLC v. Boyiatzis Holdings Co., LLC, NY Slip Op 04998 (2d Dep't August 19, 2026)

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Appellate practice

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of an amended judgment in the action.

206 Rte. 59 Holdings, LLC v. Boyiatzis Holdings Co., LLC, NY Slip Op 04997 (2d Dep't August 19, 2026)

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Appellate practice

Defendants' common-law indemnification and contribution claims are deemed abandoned as they did not address those claims in either their opposition to the motion for summary judgment dismissing the claims or in their respondents' brief on the appeal.

Ambrose v. City Univ. Constr. Fund, NY Slip Op 05060 (1st Dep't August 20, 2026)

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Defaults

A professed ignorance of the law and a lack of understanding of the need to serve an answer does not constitute a reasonable excuse for the default.

Gaitanidis v. Perri Logan Equity, Inc., NY Slip Op 04931 (2d Dep't August 12, 2026)

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Jurisdictional defects

A judgment or order issued without subject matter jurisdiction is void. The defect may be raised at any time and may not be waived.

Federal Natl. Mtge. Assn. v. Jackson, NY Slip Op 04927 (2d Dep't August 12, 2026)

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Aiding and abetting breach of fiduciary duty

A defendant knowingly participates in the breach of fiduciary duty when it affirmatively assists, helps to conceal, or fails to act when required to do so, thereby enabling the breach. An allegation that the defendant merely came upon and exploited the situation after the breach occurred is insufficient.

Rossi Mktg. Group, Inc. v. Malin Group, Inc., NY Slip Op 04987 (1st Dep't August 13, 2026)

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Service of process

Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served. Bare and unsubstantiated denials of receipt of the summons and complaint are insufficient to rebut the presumption of service. However, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server's affidavit, and necessitates an evidentiary hearing.

Anglada v. Bradford, NY Slip Op 04917 (2d Dep't August 12, 2026)

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Inter vivos gifts

The elements necessary for a valid inter vivos gift are: (1) the donor's intent to make an irrevocable present transfer of ownership; (2) physical or constructive delivery, sufficient to divest the donor of dominion and control over the property; and (3) acceptance of the gift by the donee. The proponent of the purported gift has the burden of proving each of the elements by clear and convincing evidence.

Eng v. Eng, NY Slip Op 04840 (2d Dep't August 5, 2026)

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Law of the case

The doctrine of the law of the case operates to foreclose re-examination of the issue absent a showing of new factual circumstances, additional relevant evidence, or a change in the law that would warrant reconsideration of the issue. 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.

DLJ Mtge. Capital, Inc. v. Pittman, NY Slip Op 04838 (2d Dep't August 5, 2026)

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Suing the State

Pursuant to Court of Claims Act § 11(b), a notice of intention to file a claim and a claim must set forth, among other things, the place where the claim arose. A failure to comply with the requirements set forth in the statute is a jurisdictional defect compelling dismissal of the claim.  Although § 11(b) does not require absolute exactness, it requires a statement made with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances.

Dipolito v. State of New York, NY Slip Op 04837 (2d Dep't August 5, 2026)

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Contract law

 A release is a contract, and its construction is governed by contract law.

Board of Mgrs. of the Waterwheel Condominium, LLC v. Ardsley Waterwheel Partners, LLC, NY Slip Op 04834 (2d Dep't August 5, 2026)

Here is the decision.

Summary judgment standard

The proponent of a summary judgment motion must 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. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers.

Armstrong v. Dumbo Lofts Rental, LLC, NY Slip Op 04832 (2d Dep't August 5, 2026)

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Dismissal of 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 facts, 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.

Alava v. Buffalo Airport Car Rental, NY Slip Op 04830 (2d Dep't August 5, 2026)

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Failure to appear

In order to vacate the default in appearing for oral argument, the plaintiff was required to demonstrate a reasonable excuse for his default and a potentially meritorious opposition to the defendants' motion. The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion.  Law office failure may be accepted as a reasonable excuse, provided that it is supported by a detailed and credible explanation.

Aguilar v. Tona Constr. & Mgt., LLC, NY Slip Op 04829 (2d Dep't August 5, 2026)

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Failure to oppose

The proper procedure to cure a default in opposing a motion is to move pursuant to CPLR 5015(a) to vacate the default, and, if necessary, to appeal that determination. A motion denominated as one for leave to renew an unopposed motion may be construed as one to vacate the default.

Abingdon Realty Co., LLC v. Finkelshteyn, NY Slip Op 04828 (2d Dep't August 5, 2026)

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Leave to amend

Plaintiff's proposed amendment did not advance a new theory of liability but merely expounded on theories of liability already set forth in the prior bill.  There was no showing of sufficient surprise or prejudice to deny the amendment. The motion is granted.

Batchilly v. 610 8th Ave. Corp., NY Slip Op 04910 (1st Dep't August 6, 2026)

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Fees on fees

The portion of the award for legal fees and costs incurred by the defendant in prosecuting a claim for an award of attorneys' fees - so-called "fees on fees," for services performed to recover a fee award - generally must be based upon a specific contractual provision or statute. Where a contract provides for indemnification for "legal costs and charges, including counsel fees," the Appellate Division has determined that it does not provide for fees on fees in the absence of unmistakably clear intent regarding their recovery. However, both the Court of Appeals and the Appellate Division have authorized the inclusion of fees for prosecuting or defending an appeal dealing with an award of attorneys' fees.

21st Mtge. Corp. v Nweke, NY Slip Op 04826 (2d Dep't August 5, 2026)

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Employment law

An employer can be held liable under theories of negligent hiring, retention, and supervision where the complaint alleges that the employer knew or should have known of the employee's propensity for the conduct which caused the injury.

D & A Grandview, LLC v. 60 Davidson, LLC, NY Slip Op 04743 (2d Dep't July 29, 2026)

Here is the decision.

Summary judgment and discovery

A party is entitled to a reasonable opportunity to conduct discovery in advance of a summary judgment determination. The party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion are exclusively within the knowledge and control of the movant. The mere hope or speculation that evidence sufficient to defeat the motion may be uncovered during the discovery process is insufficient to deny the motion.

Ceesay v. Gotham Bronx, LLC, NY Slip Op 04739 (2d Dep't July 29, 2026)

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Releases of claims

A valid release constitutes a complete bar to an action on a claim which is the subject of the release. A  general release may encompass unknown claims if the parties so intend and the agreement is fairly and knowingly made. Although a defendant has the initial burden of establishing that it has been released from any claims, a signed release shifts the burden to the plaintiff to show that there has been fraud, duress, or some other fact which will be sufficient to void the release.

Brighton Beach 2012, LLC v.  TD Bank, N.A., NY Slip Op 04738 (2d Dep't July 29, 2026)

Here is the decision.

Defaults

On a motion for leave to enter a default judgment against a defendant based on the failure to answer or appear, a plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defendant's default. In order to defeat a facially sufficient CPLR 3215 motion, a defendant must show either that there was no default, or that there is a reasonable excuse for the delay and a potentially meritorious defense.

Board of Mgrs. of Rosedale Townhouse Condominium v. Batson, NY Slip Op 04736 (2d Dep't July 29, 2026)

Here is the decision.

Products liability

A party injured as a result of a defective product may seek damages against the product manufacturer or others in the chain of distribution if the defect was a substantial factor in causing the injury. A product may be defective when it contains a manufacturing flaw, is defectively designed, or is not accompanied by adequate warnings for the use of the product. A products liability case can be proven without evidence of any particular defect by presenting circumstantial evidence excluding all causes of the accident not attributable to the defendant's product, thereby giving rise to an inference that the accident could only have occurred due to some defect in the product.

A defendant moving for summary judgment dismissing a design defect cause of action must establish, prima facie, that the subject product was reasonably safe for its intended use or that the plaintiff's actions constituted the sole proximate cause of the injuries.

C.B. v. Neal, NY Slip Op 04734 (2d Dep't July 29, 2026)

Here is the decision.

A driver's negligence

A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, a lack of fault in the happening of the accident. A driver is negligent if he makes an unsafe lane change, or fails to see something which, through the proper use of the driver's senses, should have been seen. A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law.

Atali v. Cole, NY Slip Op 04733 (2d Dep't July 29, 2026)

Here is the decision.