Contract law.

A contractual obligation, standing alone, will not give rise to tort liability in favor of a third party. However, a party that enters into a contract to render services assumes a duty of care and may be liable in tort to third persons, 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.

Bell v. Bollenbach & House, Inc., NY Slip Op 04453 (2d Dep't July 30, 2025)

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Discovery.

CPLR 3101(a) broadly mandates full disclosure of all matter material and necessary in the prosecution or defense of an action. However, the court, sua sponte or on motion, may issue a protective order denying, limiting, conditioning, or regulating the use of any disclosure device. A party seeking a protective order must make a factual showing of unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice. The Supreme Court may issue a protective order precluding disclosure that is palpably improper in that it seeks irrelevant and/or confidential information, or is overly broad and burdensome. Although trial courts are vested with broad discretion to issue appropriate protective orders to limit discovery, that discretion must be exercised with the competing interests of the parties and the truth-finding goal of the discovery process in mind.

G.B. v. Equinox Holdings, Inc., NY Slip Op 04452 (2d Dep't July 30, 2025)

Here is the decision.

Negligence actions.

A defendant who moves for summary judgment in a negligence action has the burden of establishing, prima facie, that he was not at fault in the happening of the accident.

Almonte v. First Student, Inc., NY Slip Op 04450 (2d Dep't July 30, 2025)

Here is the decision.

Motions to dismiss.

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims 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. Affidavits, deposition testimony, and letters are not considered documentary evidence within the meaning of CPLR 3211(a)(1).

All Nations Steel Corp. v. KSK Constr. Group, LLC, NY Slip Op 04449 (2d Dep't July 30, 2025)

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Submissions without leave.

The court may refuse to consider a party's supplemental submissions offered, without leave, on its own initiative. A party does not have license to submit its proofs whenever it pleases.

Valley Natl. Bank v. 252 W. 31 St. Corp., NY Slip Op 04528 (1st Dep't July 31, 2025)

Here is the decision.

Discovery.

Parties are entitled to disclosure of all matter material and necessary to prosecution of the action. Any matter which may lead to admissible proof is discoverable, as is any matter which bears upon a defense, even if the facts themselves are not admissible. The test is one of usefulness and reason. A party asserting that material sought in disclosure is privileged bears the burden of demonstrating that the material it seeks to withhold is immune from discovery. Personnel records are discoverable where the plaintiff alleges a cause of action to recover damages for negligent hiring, retention, or supervision.

S.E. v. Diocese of Brooklyn, NY Slip Op 04228 (2d Dep't July 23, 2025)

Here is the decision.

Service of process.

The court does not have personal jurisdiction over a defendant when a plaintiff fails to properly effectuate service of process. Where process has not been served upon a defendant, all subsequent proceedings will be rendered null and void. Service upon a natural person must be made in strict compliance with CPLR 308. 

CPLR 308(2) provides that personal service upon a natural person may be made by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place, or usual place of abode of the person to be served, and by mailing the summons to the person to be served at his last known residence. Service is invalid if the service address is not, in fact, the defendant's actual place of business, dwelling place, or usual place of abode.

A process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service. Bare and unsubstantiated denials are insufficient to rebut the presumption of service, but a sworn denial of service containing specific facts rebuts the presumption established by the affidavit of service and necessitates a hearing.

Citimortgage, Inc. v. Ramcharran, NY Slip Op 04227 (2d Dep't July 23, 2025)

Here is the decision.

Motions to dismiss.

Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed based upon another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same.

Busiello v. Whelan, NY Slip Op 04226 (2d Dep't July 23, 2025)

Here is the decision.

Vacating a default.

A defendant seeking to vacate a default in answering or appearing pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action. The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court. Here, the Supreme Court providently exercised its discretion in determining that the defendant failed to demonstrate a reasonable excuse for his default in answering the complaint or appearing in the action. The conclusory and unsubstantiated claim that he was hampered by the restrictions imposed in response to the COVID-19 pandemic does not amount to a reasonable excuse. Further, he failed to establish a reasonable excuse for the lengthy delay in moving to vacate the judgment. Since the defendant failed to establish a reasonable excuse for the default, it is unnecessary to determine whether he demonstrated a potentially meritorious defense to the action.

Asian Holdings Corp. v. Schiff, NY Slip Op 04225 (2d Dep't July 23, 2025)

Here is the decision.

Real estate commissions.

In order to prevail on a cause of action to recover a commission, the broker must establish (1) that it is duly licensed, (2) that it had a contract, express or implied, with the party to be charged with paying the commission, and (3) that it was the procuring cause of the sale. However, there is a distinction between brokerage agreements granting an exclusive agency and those conferring an exclusive right to sell, the latter of which permits a broker to recover a commission even if it was not the procuring cause of the transaction.

Angelic Real Estate, LLC v. Aurora Props., LLC, NY Slip Op 04223 (2d Dep't July 23, 2025)

Here is the decision.

Appellate practice.

The matter of defense counsel's summation describing the plaintiff as inattentive and aggressive before the accident is unpreserved for appellate review. Plaintiff's counsel failed to object to these comments at trial, did not request a curative instruction, and did not move for a mistrial on this ground.

Abdenbi v. Walgreen Co., NY Slip Op 04222 (2d Dep't July 23, 2025)

Here is the decision.