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Failure to plead.

Parties must plead all matters which if not pleaded would take the adverse party by surprise or would raise an issue of fact not appearing on the face of a prior pleading, pursuant to CPLR 3018[b].  The failure to plead a defense that must be pleaded affirmatively under CPLR 3018(b) is a waiver of that defense.  However, an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party. The burden of demonstrating prejudice or surprise is on the party opposing the motion.

Babakhanov v Diaz Austin Assoc., L.P., NY Slip Op 03032 (2d Dep't May 21, 2025)

Here is the decision.

Contract law.

Only a stranger to the contract can be liable for tortious interference with a contract.

Beast Invs. LLC  v. Celebrity Virtual Dining, LLC, NY Slip Op 03012 (1st Dep't May 20, 2025)

Here is the decision.

Actions to quiet title.

CPLR 212(a) provides that "[a]n action to recover real property or its possession cannot be commenced unless the plaintiff, or his predecessor in interest, was seized or possessed of the premises within ten years before the commencement of the action." However, CPLR 212 (a) must be read together with RPAPL 311, which provides that "the person who establishes a legal title to the premises is presumed to have been possessed thereof within the time required by law; and the occupation of the premises by another person is deemed to have been under and in subordination to the legal title unless the premises have been held and possessed adversely to the legal title for ten years before the commencement of the action."

Canty v. Burns, NY Slip Op 02903 (2d Dep't May 14, 2025)

Here is the decision.

Vacatur.

A party is precluded from moving to vacate a default on grounds asserted in a prior motion to vacate that had been previously denied in an order from which that party took no appeal or on grounds that were apparent at the time that the party made the prior motion but were not asserted therein.

Bank of Am., N.A. v. Farkas, NY Slip Op 02900 (2d Dep't May 14, 2025)

Here is the decision.

Motions to dismiss.

Under CPLR 3211(a)(1), dismissal is warranted only if the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law. In order to be considered documentary, the evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable. Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, qualify as documentary evidence. However, affidavits and letters are not documentary evidence.

On a motion pursuant to CPLR 3211(a)(7), the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. The motion must be denied unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it.

Atlasman v. Korol, NY Slip Op 02898 (2d Dep't May 14, 2025)

Here is the decision.

Jurisdiction in equity.

A court will not exercise jurisdiction in equity where there is an adequate remedy at law.

Aerogen, LLC v. Tapjets Holdings, Inc., NY Slip Op 02990 (1st Dep't May 15, 2025)

Here is the decision.

Leave to amend.

Leave to amend a pleading under CPLR 3025(b) should be freely granted unless the proposed amendment would unfairly prejudice or surprise the opposing party, or is palpably insufficient or patently devoid of merit. A determination whether to grant leave is within the Supreme Court's broad discretion, and the exercise of that discretion will not be lightly disturbed on appeal. In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion is predicated and whether there is a reasonable excuse for the delay.

Askari v. McDermott, Will & Emery, LLP, NY Slip Op 02897 (2d Dep't May 14, 2025)

Here is the decision.