90-day demands.

Where a defendant serves a 90-day demand pursuant to CPLR 3216(b)(3), the plaintiff must comply with the demand by filing a note of issue or by moving, before the default date, either to vacate the demand or to extend the 90-day demand period. Here, the plaintiff did neither. Therefore, in opposition to the defendant's motion to dismiss the complaint, the plaintiff was required to demonstrate a justifiable excuse for the failure to timely abide by the 90-day demands, as well as the existence of a potentially meritorious cause of action, pursuant to CPLR 3216[e].

Wells Fargo Bank, N.A. v. Moran, NY Slip Op 04199 (2d Dep't July 16, 2025)

Here is the decision.

Constructive trusts.

The elements of a constructive trust are a fiduciary or confidential relationship, a promise, a transfer in reliance on that promise, and unjust enrichment. The transfer element extends to instances where funds, time and effort were contributed in reliance on a promise to share in the result. A party with no actual prior interest in the property must show that an equitable interest developed through the expenditure of money, labor, and time in the property.

Angel v. Struvolich, NY Slip Op 04149 (2d Dep't July 16, 2025)

Here is the decision.

Appellate practice.

Guaranty law.

Generally, a guaranty is an instrument that qualifies for relief pursuant to a motion for summary judgment in lieu of a complaint under CPLR 3213.  In order to meet its prima facie burden on the motion, a plaintiff must prove the existence of the guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty.

Pearl Riv. Campus, LLC v. ReadyScrip, LLC, NY Slip Op 04101 (2d Dep't July 9, 2025)

Here is the decision.

Collateral estoppel.

The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action and decided against that party or those in privity, regardless of whether the tribunals or causes of action are the same. The party seeking to invoke the doctrine has the burden to show the identity of the issues, while the party trying to avoid application of the doctrine must establish the lack of a full and fair opportunity to litigate. The doctrine is based on principles of fairness and the facts and practical realities of a particular litigation, rather than rigid rules. A court's dicta is not subject to the preclusive effect of the doctrine of collateral estoppel.

Quiogue Prop. Mgt., LLC v. Torres, NY Slip Op 04115 (2d Dep't July 9, 2025)

Here is the decision.

Notices of pendency.

Since the defendant's motion to dismiss the complaint was granted, that branch of the motion which was to cancel the notice of pendency is granted as well.

Bank v. Guzzetti, NY Slip Op 04116 (2d Dep't July 9, 2025)

Here is the decision.

Service of process.

Service of process under CPLR 308(2) requires that the summons be delivered within the state to a person of suitable age and discretion at the defendant's "actual place of business, dwelling place or usual place of abode," along with a mailing of the summons to the defendant's last known residence or actual place of business. Personal jurisdiction is not acquired absent compliance with both the delivery and mailing requirements of the statute.  At a hearing to determine the validity of service, the burden of proving personal jurisdiction is on the party asserting it, and that party must sustain that burden by a preponderance of the credible evidence. Credibility determinations rendered by the Supreme Court as to the witnesses who have testified are entitled to great deference on appeal.

Rhoe v. Reid, NY Slip Op 04117 (2d Dep't July 9, 2025)

Here is the decision.

Rear-end collisions.

A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision.  A non-negligent explanation may include evidence of a mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on wet pavement, or any other reasonable cause. 

Torres v. New York City Tr. Auth., NY Slip Op 04120 (2d Dep't July 9, 2025)

Here is the decision.

Proximate cause.

Generally,  the proximate cause of an accident is for the jury to decide, but it may be decided as a matter of law where only one conclusion may be drawn from the facts. Liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes.

Brinkley v. STD Trucking Corp., NY Slip Op 04080 (2d Dep't July 9, 2025) 

Here is the decision.

Motion practice.

Where the defendant fails to establish its prima facie entitlement to judgment as a matter of law, the motion court will not consider the sufficiency of the plaintiffs' opposition papers.

Acosta v. Shanahan Group, LLC, NY Slip Op 04077 (2d Dep't July 9, 2025)

Here is the decision.

Contract law.

The essential elements of a breach of contract cause of action are the existence of a contract, the plaintiff's performance under the contract, the defendant's breach of that contract, and resulting damages. In order to state a cause of action, the plaintiff's allegations must identify the provisions of the contract that were breached. Where the contract is before the court, its provisions establish the rights of the parties and prevail over conclusory allegations of the complaint.

7 Leaf Compounds, LLC v. Pearl Riv. Campus, LLC, NY Slip Op 04076 (2d Dep't July 9, 2025)

Here is the decision.