Contract law

Contract interpretation is a question of law subject to de novo review. A complete, clear, and unambiguous agreement must be enforced according to its plain terms. Courts seek the parties' reasonable expectations, giving words their fair meaning in context.

Aurelius Capital Master Ltd. vs. Hertz Intl. Ltd., NY Slip Op 05369 (1st Dep't September 22, 2026)

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Venue

Pursuant to CPLR 503(a), "[e]xcept where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced; [or] the county in which a substantial part of the events or omissions giving rise to the claim occurred." CPLR 510(3) provides that, upon motion, the court may change the venue of an action where "the convenience of material witnesses and the ends of justice will be promoted by the change." A party moving to change venue pursuant to CPLR 510(3) must provide information about the prospective witnesses, including, but not limited to, their names and addresses, disclose the facts about which the proposed witnesses will testify at the trial, represent that the prospective witnesses are willing to testify, and state that the witnesses would be inconvenienced if the venue is not changed. The situs of a plaintiff's injury may provide a basis for a discretionary change of venue in that, things being equal, a transitory action should be tried in the county where the cause of action arose.

Bellavia vs. Hoppenstein, NY Slip Op 05267 (2d Dep't September 16, 2026)

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Premises liability

Under the storm in progress rule, a property owner will not be held liable in negligence for a plaintiff's injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter.

Batista vs. Allerton Ave. Estates, LLC, NY Slip Op 05265 (2d Dep't September 16, 2026)

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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 for spoliation must show that the party having control over the evidence was obliged to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense.

The Supreme Court has broad discretion in determining what, if any, sanction is imposed for spoliation of evidence, but the Appellate Division may substitute its own discretion for that of the trial court. The nature and severity of the sanction depends upon a number of factors, including, but not limited to, the knowledge and intent of the spoliator, proof of an explanation for the loss of the evidence, and the degree of prejudice to the opposing party.

Alvarez vs. 100-10 67 Rd. Condominium, NY Slip Op 05261 (2d Dep't September 16, 2026)

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Contract law

The equitable remedy of specific performance is a discretionary remedy that provides an alternative to an award of damages as a means of enforcing a contract. The decision whether to grant or deny the remedy of specific performance lies within the discretion of the court. It should not be granted where it would cause unreasonable hardship or injustice.

90 Chicken Corp. v. 90 Jericho Realty Corp., NY Slip Op 05258 (2d Dep't September 16, 2026)

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Contract law

Lease provisions purporting to exempt a lessor from liability for its own negligence are void as against public policy. However, where sophisticated parties, negotiating at arm's length, have agreed to allocate between themselves the risk of liability to third parties, through insurance, the agreement is enforceable.

Hearns v. Blended Family, LLC, NY Slip Op 05367 (1st Dep't September 17, 2026)

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Appellate practice

In reviewing a determination made after a non-jury trial, the Appellate Division's power is as broad as that of the trial court. The Appellate Division may render the judgment it finds warranted by the facts, taking into account that, in a close case, the trial judge had the advantage of seeing the witnesses.

90 Chicken Corp. v. 90 Jericho Realty Corp., NY Slip Op 05258 (2d Dep't September 16, 2026)

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Contract law

A stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation. A court should interpret the stipulation in accordance with its plain and ordinary meaning, and arrive at a construction that will give fair meaning to the contractual language so that the parties' reasonable expectations will be realized. A court may not write into a contract conditions the parties did not insert by adding or excising terms under the guise of construction, and it may not construe the language in such a way as would distort the contract's apparent meaning. In making the determination, the court should examine the entire contract and consider the relation of the parties and the circumstances under which the contract was executed.

Graudins v. Hunt, NY Slip Op 05168 (2d Dep't Septrember 2, 2026)

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Motions to dismiss

In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one.

Gooding v. Bank of N.Y. Mellon, NY Slip Op 05167 (2d Dep't September 2, 2026)

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A deceased mortgagor

A party may not commence a legal action or proceeding against a dead person. Thus, when a mortgagor dies prior to the commencement of a foreclosure action, the action is a legal nullity, unless the action is commenced against the personal representative of the mortgagor's estate.

Federal Natl. Mtge. Assn. v. Gooch, NY Slip Op 05165 (2d Dep't September 2, 2026)

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Dismissal based on documentary evidence

A party may move to dismiss a complaint pursuant to CPLR 3211(a)(1) where the movant has a defense founded on documentary evidence. The evidence submitted in support of the motion must be documentary or the motion must be denied. Emails do not qualify as documentary evidence.

Druzhinsky v. Trump Vil. Section 4, Inc., NY Slip Op 05164 (2d Dep't September 2, 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 the judgment in the action.

Druzhinsky v. Trump Vil. Section 4, Inc., NY Slip Op 05163 (2d Dep't September 2, 2026)

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Premises liability

Premises liability, as with liability for negligence generally, begins with duty. It is for the court to determine whether any duty exists, taking into consideration the reasonable expectations of the parties and society in general. The scope of any such duty of care varies with the foreseeability of possible harm. Generally, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property.

Cox v. Cove 5, LLC, NY Slip Op 05160 (2d Dep't September 2, 2026)

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Section 60

Arbitration provisions

Arbitration is a matter of contract, grounded in an agreement between the parties. Thus, when deciding whether the parties agreed to arbitrate a certain matter, the court will apply the principles that govern the formation of contracts. If the parties have broadly agreed to arbitrate any dispute arising out of a contract, the court's sole inquiry is whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the underlying contract.

Under contract law, the general rule is that only a party to an arbitration agreement is bound by or may enforce the agreement. However, an assignee of a contract may avail itself of an arbitration clause contained therein.

Breslin Brookhaven, LLC v. Rose, NY Slip Op 05156 (2d Dep't September 2, 2026)

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Medical malpractice

To establish a cause of action to recover damages based on lack of informed consent, a plaintiff must prove: (1) the treatment provider failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives thereto; (2) a reasonably prudent patient, if fully informed, would not have undergone the treatment; and (3) the lack of informed consent is a proximate cause of the injury. The mere fact that the plaintiff signed a consent form does not establish the defendants' prima facie entitlement to judgment as a matter of law. 

Boutereira v. Grotas, NY Slip Op 05155 (2d Dep't September 2, 2026)

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Contract law

New York courts routinely enforce liability-limitation provisions, especially when negotiated by sophisticated parties. The Appellate Division has recognized an exception to this general rule in cases where a party's alleged misconduct smacks of intentional wrongdoing that is fraudulent, malicious, or prompted by the sinister intention of a party acting in bad faith. The type of intentional wrongdoing that could render a contractual limitation unenforceable is that which is unrelated to any legitimate economic self-interest. Where the conduct in question was undertaken to advance a legitimate economic self-interest, a party is entitled to rely on the contractual limitation provision, notwithstanding the intentional nature of its actions.

Jeffries, LLC v. Mountain State Energy Holdings, LLC, NY Slip Op 05232 (1st Dep't September 3, 2026)

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Dismissal as abandoned

Pursuant to CPLR 3215(c), "[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 . . . unless sufficient cause is shown why the complaint should not be dismissed."  In order to avoid dismissal pursuant to the statute, it is not necessary for a plaintiff to actually obtain a default judgment within one year of the default. As long as proceedings are being taken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case is not subject to dismissal. Once the plaintiff establishes that it had initiated proceedings for the entry of a judgment within one year, it is in compliance with CPLR 3215(c) and is not required to account for any additional periods of delay subsequent to the initial one-year period.

Aurora Loan Servs., LLC v. Miller, NY Slip Op 05153 (2d Dep't September 2, 2026)

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Judicial conduct

Judicial remarks that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases do not support a bias or partiality challenge.

Beach v. Touradji Capital Mgt., L.P., NY Slip Op 05231 (1st Dep't September 3, 2026)

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Arbitration awards

Under CPLR 7511, a party may move to vacate or modify an award if it demonstrates by clear and convincing proof that its rights were prejudiced by the arbitrator's partiality. Partiality can be established by proof of actual bias or the appearance of bias from which a conflict of interest may be inferred. 

Matter of 57th & 6th Ground, LLC v. Carnegie House Tenants Corp., NY Slip Op 05230 (1st Dep't September 3, 2026)

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Property law

RPAPL 1371(2) specifies, in pertinent part, as follows: "Simultaneously with the making of a motion for an order confirming the sale, . . . the party to whom [a deficiency] shall be owing may make a motion in the action for leave to enter a deficiency judgment upon notice to the party against whom such judgment is sought or the attorney who shall have appeared for such party in such action. Such notice shall be served personally or in such other manner as the court may direct."

Here, the plaintiff's electronic filing of the motion papers on the New York State Courts Electronic Filing System did not constitute proper service in accordance with RPAPL 1371(2). This constitutes a complete bar to the entry of a deficiency judgment.

11-36 31st Ave. Lender, LLC v. RM Newman, LLC, NY Slip Op 05151 (2d Dep't September 2, 2026)

Here is the decision.

Contract law

In New York, to establish its prima facie entitlement to judgment as a matter of law on a cause of action alleging breach of contract, a plaintiff is required to demonstrate the existence of a contract, the party's performance under the contract, the other party's breach of the contract, and harm suffered by the party as a result. An enforceable agreement requires an offer, acceptance of the offer, consideration, mutual assent, and an intent to be bound.

Banc of Am. Leasing & Capital, LLC v. Wooter Apparel, Inc., NY Slip Op 05069 (2d Dep't August 26, 2026)

Here is the decision.

Dismissal for failure to prosecute

A court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met. Pursuant to CPLR 3216(b), an action cannot be dismissed pursuant to CPLR 3216(a) unless a written demand is served upon the party against whom such relief is sought in accordance with the statutory requirements, along with a statement that non-compliance within 90 days will serve as a basis for a motion to dismiss. The statute also requires that where a written demand to resume prosecution of the action is made by the court, the demand shall set forth specific conduct demonstrating a pattern of delay in proceeding with the litigation.

Avanza Group, LLC v. Bugz Innovations, LLC, NY Slip Op 05068 (2d Dep't August 26, 2026)

Here is the decision.

Malpractice or negligence

Medical malpractice is a species of negligence. The distinction turns on whether the act complained of involves a matter of medical science or art requiring special skills not ordinarily possessed by lay persons, or whether the conduct complained of can be assessed on the basis of the common everyday experience of the trier of fact.  A claim sounds in medical malpractice when the challenged conduct constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician to a particular patient. When a plaintiff's allegations do not focus on negligence in furnishing medical treatment to a patient, but on a physician's failure in fulfilling a different duty, the claim sounds in ordinary negligence. In categorizing a claim for statute of limitations purposes, the court must focus on the essence of the claim, and, critically, identify the nature of the duty owed to the plaintiff that the defendant allegedly breached.

Lafferty v. Avila, NY Slip Op 05147 (1st Dep't August 27, 2026)

Here is the decision.