Summary judgment and discovery

A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment. A  party who contends that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts necessary to oppose the motion are exclusively within the knowledge and control of the movant, pursuant to CPLR 3212[f]. The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion.

Romano v. Welsbach Elec. Corp., NY Slip Op 00809 (2d Dep't February 11, 2026)

Here is the decision.

Civil conspiracy

Plaintiff's claim for civil conspiracy is dismissed with prejudice because New York does not recognize an independent cause of action for conspiracy.

Carvello v. Warner Music Group Corp., NY Slip Op 00635 (1st Dep't February 10, 2026)

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Court holiday

Service of process

CPLR 308(4) requires due diligence in seeking to effectuate service on a defendant before resorting to nail-and-mail service. Generally, a plaintiff can establish diligence by providing an affidavit of service indicating efforts to serve the defendant at the defendant's residence on three different occasions, at different times of day. However, there is not the requisite due diligence where all of the dates of attempted personal service were during the work week and during normal business hours and in the same afternoon window.

Unitrin Safeguard Ins. Co, v. Della-Noce, NY Slip Op 00601 (1st Dep't February 5, 2026)

Here is the decision.

The emergency doctrine

The emergency doctrine provides that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or which is so reasonably disturbing that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context. Ordinarily, whether there was an emergency and whether the defendant's response was reasonable are questions of fact. However, summary judgment may be granted on the basis of sufficient evidence demonstrating both an emergency and the reasonableness of the actor's response to it.

Callands v. County of Westcheter, NY Slip Op 00489 (2d Dep't February 4, 2026)

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Appellate practice

No appeal lies from an order refusing to sign an order to show cause, as it is an ex parte order that does not decide a motion made on notice, pursuant to CPLR 5701[a][2].

S.A.W. v. Archdiocese of N.Y., NY Slip Op 00603 (1st Dep't February 5, 2026)

Here is the decision.

Employment law

While an employer is not vicariously liable for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business, the employer may be liable under theories of negligent hiring, retention, or supervision of the employee.  A cause of action based on negligent hiring, retention, or supervision requires a showing that the employer knew or should have known of the employee's propensity for the conduct which caused the injury and that there is a connection between the defendant's negligence and the plaintiff's injuries.

BCVAWCH-Doe v. Roman Catholic Archdiocese of N.Y., NY Slip Op 00488 (2d Dep't February 4, 2026)

Here is the decision.

Sanctions for frivolous conduct

A court may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct, pursuant to 22 NYCRR 130-1.1(a). Conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false.

Aretakis v. CPEX Real Estate, LLC, NY Slip Op 00486 (2d Dep't February 4, 2026)

Here is the decision.

Motions to intervene

Failure to submit a proposed answer or other pleading is fatal to a motion to intervene, pursuant to CPLR 1014.

U.S. Bank, N.A. v. Brown, NY Slip Op 00483 (1st Dep't February 3, 2026)

Here is the decision.

Summary judgment

A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment. The party opposing summary judgment is entitled to obtain further discovery when it appears that there may be facts supporting the opposing party's position but those cannot then be stated. A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant.

Zihui Lin v. Cheng Liu, NY Slip Op 00403 (2d Dep't January 28, 2026)

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Appellate practice

In this legal malpractice action, defendants' argument concerning litigation strategy and professional judgment was raised for the first time on appeal and, therefore,  is unpreserved.

Park W. Exec. Servs., Inc. v. Gallo Vitucci & Klar, LLP, NY Slip Op 00428 (1st Dep't January 29, 2026)

Here is the decision.

Motions for summary judgment

The party moving for summary judgment bears the initial burden to 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. A moving defendant cannot satisfy this burden merely by pointing to gaps in the plaintiff's case; it must affirmatively demonstrate the merits of its defense.

Chin v. Pacific 10, LLC, NY Slip Op 00343 (2d Dep't January 28, 2026)

Here is the decision.

Appellate practice

An issue is properly before the Appellate Division where the defendants did not raise it until their reply papers, but raised it in their opening brief on appeal and plaintiff, without objecting, responded to it substantively.

Fernandez v. Sukhdeep, NY Slip Op 00422 (1st Dep't January 29, 2026)

Here is the decision.

Contract law

A contractual provision assuming an obligation to indemnify a party for attorneys' fees must be strictly construed so as to avoid reading into it a duty which the parties did not intend to be assumed.

23-35 Bridge St., LLC v. Excel Automotive Tech Ctr., Inc., NY Slip Op 00337 (2d Dep't January 28, 2026)

Here is the decision.

Leave to amend

It is well-settled that leave to amend shall be freely given absent prejudice or surprise, pursuant to CPLR 3025[b]. The movant need not establish the merit of its proposed new allegations, but must simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit.

Peck v. Milbank LLP, NY Slip Op 00322 (1st Dep't January 27, 2026)

Here is the decision.

Appellate practice

Dismissal of the appeal is warranted as to the parties that were not aggrieved by the order on appeal, pursuant to CPLR 5511. While the order may contain language or reasoning that these parties consider adverse to their interests, that does not accord them standing to take an appeal.

Rodriguez v. CB Devs., NY Slip Op 00326 (1st Dep't January 22, 2026)

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Contract law

A contract may be voided on the ground of economic duress where the complaining party was compelled to agree to its terms by means of a wrongful threat which precluded the exercise of its free will. Financial pressure and an unequal bargaining position do not constitute economic duress. The threatened party must establish that it could not obtain the goods from another source of supply and that the ordinary remedy of an action for breach of contract would be inadequate.

Southern Israel Bridging Fund Two, L.P. v. Orgenesis, Inc., NY Slip Op 00328 (1st Dep't January 22, 2026)

Here is the decision.

Dismissal as abandoned

CPLR 3215(c) directs that "[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, without costs, upon its own initiative . . . , unless sufficient cause is shown why the complaint should not be dismissed." However, pursuant to CPLR 3408(n), the one-year deadline is tolled while mandatory settlement conferences are pending.

Bank of Am., N.A. v. Keefer, NY Slip Op 00231 (2d Dep't January 21, 2026)

Here is the decision.

Contract law

The right to assert a fraud or other tort claim related to a contract or note does not automatically transfer with the respective instrument. There must be some language - although no specific words are required - to evince the parties' intent and effectuate the conveyance of such a right. 

BH 336 Partners LLC v. Sentinel Real Estate Corp., NY Slip Op 00305 (1st Dep't January 22, 2026)

Here is the decision.

Striking a pleading

Supreme Court providently exercised its discretion in denying plaintiff's motion to strike defendants' pleadings, pursuant to CPLR 3126. The record does not demonstrate that defendants' conduct was clearly willful and contumacious so as to warrant such a harsh sanction.

Naramore v. Mount Sinai Health Sys., Inc., NY Slip Op 00226 (1st Dep't January 20, 2026)

Here is the decision.