A plaintiff alleging discrimination by a public employer may proceed pursuant to article 78 or by plenary action. As a department of the City, the NYPD is not a separate legal entity amenable to suit.
Farah v. City of New York, NY Slip Op 04978 (2d Dep't September 17, 2025)
In order to sustain a finding of civil contempt under Judiciary Law § 753, it is necessary to establish that a lawful court order clearly expressing an unequivocal mandate was in effect, that the person alleged to have violated the order had actual knowledge of its terms, and that the violation has defeated, impaired, impeded, or prejudiced the rights of a party. The aim of civil contempt is to vindicate a party's right to the benefits of a judicial mandate or to compensate that party for the interference by the contemnor. The party seeking a finding of contempt bears the burden of proving its elements by clear and convincing evidence.
Deutsche Bank Natl. Trust Co. v. Raimo, NY Slip Op 04976 (2d Dep't September 17, 2025)
It is within a trial court's discretion to grant the severance of a third-party's claim, but the discretion should be exercised sparingly. The statute is CPLR 1010.
Carvajal v. Alcaide, NY Slip Op 04973 (2d Dep't September 17, 2025)
A guaranty is a promise to fulfill another party's obligations, and is subject to the principles of contract construction. Under those principles, a written agreement that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms. Guaranties that contain language obligating the guarantor to payment without recourse to any defenses or counterclaims are enforceable as absolute and unconditional. On a motion for summary judgment to enforce a written guaranty, all that the creditor need prove is an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty.
Almark Holding Co,, LLC v. Abbas, NY Slip Op 04969 (2d Dep't September 17, 2025)
The failure to serve process leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void. The burden of proving that personal jurisdiction has been acquired over a defendant is on the plaintiff.
Service of process upon a natural person must be made in strict compliance with statutory methods of service pursuant to CPLR 308. CPLR 308 requires that service be attempted by personal delivery of the summons to the person to be served, or by delivery to a person of suitable age and discretion at the actual place of business, dwelling place, or usual place of abode. Service pursuant to CPLR 308(4) may be used only where service under CPLR 308(1) or (2) cannot be made with due diligence. The due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received. The due diligence requirement may be met with a few visits on different occasions and at different times to the defendant's residence or place of business when the defendant could reasonably be expected to be found at such location at those times. In addition, it must be shown that the process server made genuine inquiries about the defendant's whereabouts and place of employment.
Bank of N.Y. Mellon v. Simpson, NY Slip Op 04970 (2d Dep't September 17, 2025)
A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker's business practices and procedures. Computations based on a review of unidentified and unproduced business records constitute inadmissible hearsay and lack probative value.
Bank of Am., N.A. v. Barnett, NY Slip Op 04861 (2d Dep't September 10, 2025)
Whether there is a duty of care is a question of law. Absent a duty, there is no breach and, without breach, there is no liability for negligence. Courts have imposed a duty of care where there are special circumstances in which there is sufficient authority and ability to control the conduct of third-persons. However, a parent is not liable for the tortious or intentional conduct of an emancipated child.
Ballan v. Greenberg, NY Slip Op 04860 (2d Dep't September 10, 2025)
A defendant waives the defense of lack of personal jurisdiction by appearing in an action, either formally or informally, without raising the defense in an answer or pre-answer motion to dismiss. A defendant may appear informally by actively litigating the action before the court. When a defendant participates in a lawsuit on the merits, he indicates an intention to submit to the court's jurisdiction over the action, and by appearing informally in this manner, the defendant confers in personam jurisdiction on the court. Here, the defendants waived the defense of lack of personal jurisdiction by opposing a prior motion by the plaintiff for leave to enter a default judgment against them on the ground that the plaintiff failed to establish the merits of its cause of action against them and by thereafter opposing another prior motion by the plaintiff and filing a cross-motion for affirmative relief, all without asserting an objection to jurisdiction.
BAC Home Loans Servicing, L.P. v. Davis, NY Slip Op 04859 (2d Dep't September 10, 2025)
The plaintiff pleads an account stated with evidence that it generated statements for the defendant in the regular course of business, that it mailed those statements on a monthly basis, that the defendant accepted and retained these statements, without objection, for a reasonable period of time, and that the defendant made partial payments thereon.
American Express Natl. Bank v. Zelkovitz, NY Slip Op 04857 (2d Dep't September 10, 2025)
The Appellate Division may not make findings based on matters outside the record.
Olympic Galleria, Co., Inc. v. Sitt, NY Slip Op 04965 (1st Dep't September 11, 2025)
A plaintiff cannot raise a new theory of liability in opposition to a motion for summary judgment.
Alexandre v Shih T. Wang, NY Slip Op 04855 (2d Dep't September 10, 2025)