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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

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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)

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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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.

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)

Here is the decision.