Defamation

The elements of a cause of action for defamation are (a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se. A statement constitutes defamation per se if it tends to injure the plaintiff's trade, business, or profession.

Only statements alleging facts can be the subject of a defamation action because only facts are capable of being proven false, and falsity is a necessary element of defamation. In distinguishing between statements of fact and those of pure opinion, it is necessary to consider the writing as a whole, including its tone and apparent purpose, as well as the overall context of the publication, to determine whether the reasonable reader would have believed that the challenged statements were conveying facts about the plaintiff.

An expression of pure opinion is not actionable no matter how vituperative or unreasonable it may be. Where a statement of pure opinion implies that it is based upon undisclosed facts which justify the opinion, it is actionable because a reasonable listener or reader would infer that the speaker or writer knows certain facts, unknown to the audience, which support the opinion and are detrimental to the person toward whom the communication is directed. Where, however, the opinion recites the facts upon which it is based without implying the existence of additional, undisclosed facts, that statement is not actionable.

Biagini Realty v. Brightman, NY Slip Op 07371 (2d Dep't December 31, 2025)

Here is the decision.

Adding a defendant

The court may consider a motion to add a defendant even though the proposed additional defendant had not been served with a copy of the motion.

Acevedo v. 439 Realty Corp., NY Slip Op 07370 (2d Dep't December 31, 2025)

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Contract law

A corporation's by-laws constitute a contract between the corporation and its members. The members impliedly agree that the by-laws are determinative of the members' rights and status in relation to the corporation.

Matter of Min Wu v. Institute of Elec. and Elecs. Engrs. Inc., NY Slip Op 07347 (1st Dep't December 30, 2025)

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Leave to renew

A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination, and must offer a reasonable justification for the failure to present the new facts on the prior motion. The new or additional facts presented either must have not been known to the party seeking renewal or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion. While it is within the court's discretion to grant leave upon facts known to the moving party at the time of the prior motion, a motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.

Jesan Constr. Group, LLC v. Bedford Mer, LLC, NY Slip Op 07290 (2d Dep't December 24, 2025)

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Recusal

The motion for recusal is denied where the movant failed to argue that any alleged bias, prejudice, or unworthy motive affected any of the court's rulings. Moreover, none of the alleged bases for recusal was sufficient to show that the court was incapable of being impartial.

Alfred v. Brutus, NY Slip Op 07333 (1st Dep't December 30, 2025)

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Notices of claim

Court of Claims Act § 10(6) permits a court, in its discretion, to allow a claimant to file a late claim. In exercising its discretion, the court shall consider whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim resulted in substantial prejudice to the state; and whether the claimant has any other available remedy. 'No one factor is deemed controlling, nor is the presence or absence of any one factor determinative. However, if a claim is legally deficient, leave to file a late claim should be denied even if the other factors favor the granting of the request.

Notice of the essential facts constituting the claim requires knowledge of the facts that underlie the legal theory or theories on which liability is predicated, and not merely notice of the accident itself.

Kissoon v. State of New York, NY Slip Op 07292 (2d Dep't December 24, 2025)

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Happy New Year at Columbus Circle

Motion practice

The eighth and ninth causes of action were discontinued with prejudice by stipulation, thus rendering unnecessary any substantive argument from defendant regarding these claims on its motion for summary judgment, pursuant to CPLR 3217[a][2].

Piscetelli v. Deloitte Servs.., LLP, NY Slip 07232 (1st Dep't December 23, 2025)

Here is the decision.

Judicial immunity

New York courts have recognized that it is imperative to the nature of the judicial function that judges be free to make decisions without fear of retribution through accusations of malicious wrongdoing. Recognizing the distinct nature of the judicial process, judicial immunity protects judges only in the performance of their judicial functions. A logical extension of this premise is that other neutrally positioned government officials, regardless of title, who are delegated judicial or quasi-judicial functions should also not be shackled with the fear of civil retribution for their acts. The common law provides absolute immunity from subsequent damages liability for all persons, governmental or otherwise, who are integral parts of the judicial process.

Marrero v. State of New York, NY Slip Op 07294 (2d Dep't December 24, 2025)

Here is the decision.

Motions to dismiss

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory. If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one. Affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that the plaintiff has no cause of action.

A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law.

Macru v. Shorefront Operating, LLC, NY Slip Op 07293 (2d Dep't December 24, 2025)

Here is the decision.

Storm-in-progress rule

Under the storm-in-progress rule, a property owner or a snow removal contractor will not be held liable for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.

Walker v. Jonis Holdings II, LLC, NY Slip Op 07038 (2d Dep't December 17, 2025)

Here is the decision.