Vacating a default

Defendant timely filed its motion to vacate the default order under CPLR 317 because no entry of judgment was filed. Nevertheless, in this trip and fall action alleging a defect in a public sidewalk, defendant failed to demonstrate a meritorious defense as required by CPLR 317. The affidavit from defendant's property manager contains only general denials of its duty and notice. Vacatur denied.

Arias v. City of New York, NY Slip Op 06891(1st Dep't December 11, 2025)

Here is the decision.

Motion to vacate

Supreme Court properly denied respondent's motion to vacate the June 2018 judgment. Respondent does not explain how the allegedly new information would have changed the outcome in this proceeding, which is solely to enforce the prior judgment, pursuant to CPLR 5015[a][2]. In addition, the record establishes that respondent learned of the supposedly new information in May of 2021, over three years before respondent filed his motion to vacate on September 25, 2024.

Matter of IGS Realty Co., L.P. v. Brady, NY Slip Op 06786 (1st Dep't December 4, 2025)

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Constructive trusts.

The four factors to be considered in ascertaining whether the imposition of a constructive trust is warranted are the existence of a fiduciary or confidential relationship, a promise, a transfer in reliance thereon, and unjust enrichment.

Corriette v. Mele, NY Slip Op 06687 (2d Dep't December 3, 2025)

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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)

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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)

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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)

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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)

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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.