Expert witnesses

 Supreme Court providently exercised its discretion in denying defendants' motion to strike plaintiffs' expert disclosure and to preclude the expert from testifying at trial, pursuant to CPLR 3101[d][1], and finding that plaintiffs' expert disclosure filing was not untimely. The record does not show that the delay in plaintiffs' expert disclosure was due to willful noncompliance or that defendants were prejudiced by the belated disclosure, particularly given that defendants were on notice that plaintiffs intended to engage an economist such as a CPA as an expert witness. Further, Supreme Court's adjournment of the matter to provide defendants time to engage a rebuttal expert if they deemed one necessary was appropriate to prevent any prejudice.

United Medicine & Rehabilitation, P.C. v. Yakobashvili, NY Slip Op 06797 (1st Dep't December 4, 2025)

Here is the decision.

Gross negligence

In order to constitute gross negligence, a party's conduct must smack of intentional wrongdoing or evince a reckless indifference to the rights of others. A party is grossly negligent when it fails to exercise even slight care or diligence. Ordinarily, the question of gross negligence is to be determined by the trier of fact.

Calixto v. A. Balsamo & Rosenblatt, P.C., NY Slip Op 06686 (2d Dep't December 3, 2025)

Here is the decision.

December 8, 1941

December 7, 1941

Attorneys' fees

Determining whether a party has prevailed for the purpose of recovering its attorneys' fees requires an initial consideration of the true scope of the dispute litigated, followed by a comparison of what was achieved within that scope.

Matter of Aryeh Realty Corp. v. 18 E. 69th St Tenant, LLC, NY Slip Op 06783 (1st Dep't December 4, 2025)

Here is the decision.

Pleading fraud.

The elements of a cause of action to recover damages for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff, and damages.  A claim rooted in fraud must be pleaded with the requisite particularity under CPLR 3016(b).

ANS 1 Corp. v. Yosef, NY Slip Op 06684 (2d Dep't December 3, 2025)

Here is the decision.

Discovery

The nature and degree of a penalty imposed pursuant to CPLR 3126 for failure to comply with discovery is within the trial court's discretion. Although public policy strongly favors that actions be resolved on the merits, a court may resort to the drastic remedies of striking a pleading or precluding evidence upon a clear showing that a party's failure to comply with a disclosure order was the result of willful and contumacious conduct. The willful and contumacious character of a party's conduct can be inferred from either the repeated failure to respond to demands or comply with discovery orders without demonstrating a reasonable excuse for these failures, or the failure to comply with court-ordered discovery over an extended period of time.

Barua v. IM Peculiar, Inc., NY Slip Op 06591 (2d Dep't November 26, 2025)

Here is the decision.

Contract law

Where there is an inconsistency between a general provision and a specific provision of a contract, the specific provision controls.

Moghtaderi v. Apis Capital Advisors, LLC, NY Slip Op 06548 (1st Dep't November 25, 2025)

Here is the decision.

Res judicata

A disposition on the merits bars litigation between the same parties or those in privity with them of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding, even if based on a different theory or if seeking a different remedy. A party may not remain silent in the first action and then bring a second one on the basis of a preexisting claim for relief that would impair the rights or interests established in the first action.

Bartley v. Morgan, NY Slip Op 06590 (2d Dep't November 26, 2025)

Here is the decision.

Extending time

Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant an extension of time within which to effect service for good cause shown or in the interest of justice. The more flexible interest of justice standard accommodates late service that might be due to mistake, confusion, or oversight, as long as there is no prejudice to the defendant. In considering the interest of justice standard, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to the defendant.

Bank of N.Y. v. Hernandez, NY Slip Op 06589 (2d Dep't November 26, 2025)

Here is the decision.

Motion Practice.

A plaintiff may not raise a claim for the first time in its opposition to the defendant's motion to dismiss.

Myers v. Doherty, NY Slip Op 06550 (1st Dep't November 25, 2025)

Here is the decision.