The Supreme Court should have overlooked the appellants’ failure to submit a word count certification with their motion for summary judgment, as no substantial right of any party was prejudiced … . Accordingly, we reverse. Since the Supreme Court did not consider the merits of the motion, we remit the matter … for a new determination on the merits of the motion. Hodges v 37-11 30th St., LLC, 2026 NY Slip Op 03428, Second Dept 6-3-26

“[A] restrictive covenant will run with the land and will be enforceable against a subsequent purchaser of the land when the following requirements are satisfied: (1) it must appear that grantor and grantee intended that the covenant should run with the land; (2) it must appear that the covenant is one touching or concerning the land with which it runs; [and] (3) it must appear that there is privity of estate between the promisee or party claiming the benefit of the covenant and the right to enforce it, and the promisor or party who rests under the burden of the covenant” … . The only one of these requirements at issue on this appeal is the intent of the parties, “which must be determined from the instrument and, if necessary, by looking also to the surrounding circumstances” … .

Here, the 2000 deed did not expressly recite that the restrictive covenant was to run with the land. Although that deed contained language providing that the County conveyed to BPC Holding, and to its “heirs or successors and assigns,” the right to have and to hold the property, subject to the restrictive covenant, the mere presence of that language was not sufficient, standing alone, to establish that the grantor and the grantee intended that the restrictive covenant run with the land … .

Nevertheless, the County defendants and the Town defendants established, prima facie, that the restrictive covenant was intended to run with the land based upon the surrounding circumstances…. . * * *

“In order to state a cause of action pursuant to RPAPL 1951, a plaintiff seeking a declaration that a restrictive covenant is unenforceable must allege that, upon a balancing of the equities, the restrictive covenant is of no actual and substantial benefit to the party seeking to enforce it” … . Here, the County defendants and the Town defendants failed to establish, prima facie, that the plaintiff’s alleged hardships due to the restrictive covenant did not “tip the balance of equities in favor of extinguishing [the restrictive covenant]” pursuant to RPAPL 1951(2) … . U & Me Homes, LLC v County of Suffolk, 2026 NY Slip Op 03331, Second Dept 5-27-26

Practice Point: Consult this decision for an in-depth discussion of the criteria for a restrictive covenant which runs with the land, the criteria for extinguishing a restrictive covenant by merger, and the criteria for rendering a restrictive covenant unenforceable pursuant to RPAPL 1951 because of the hardship it imposes.

Viewing the evidence in the light most favorable to the People, the evidence was legally sufficient to establish the defendant’s commission of the charged crimes as an accomplice. The defendant’s conduct before, during, and after the commission of the robbery established his shared intent to commit the crime of robbery … . People v Symns, 2026 NY Slip Op 03325, Second Dept 5-27-26

Practice Point: Mere presence during a robbery is not enough for accomplice liability. But here, although he did not participate in the theft of the victim’s cash at gunpoint and did not receive any of the cash, defendant participated in the planning of the robbery, transported his accomplices to and from the robbery scene, and arranged the meeting with the victim at the robbery scene. His actions before and after the robbery demonstrated he shared the intent of the persons who executed the robbery and therefore defendant was properly indicted as an accomplice.

“Pursuant to 22 NYCRR 130-1.1(a), a court may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct” … . “Conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” … .

Here, by filing an appellate brief citing to a nonexistent case as the sole support for his claim of judicial bias, the father engaged in conduct that was “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” … , and that involved the assertion of “material factual statements that are false” … . Thus, the father’s reliance on GenAI, without taking the time to verify that the limited number of cases in his appellate brief stood for the propositions cited, let alone were actually in existence, constituted frivolous conduct. Matter of Julien v Arthur, 2026 NY Slip Op 03308, Second Dept 5-27-26

Practice Point: Using GenAI to draft an appellate brief is not “frivolous conduct.” It is the failure to verify the accuracy and legitimacy of citations to nonexistent authority in the GenAI document which constitutes “frivolous conduct” for which a monetary sanction is appropriate.

The Supreme Court erred in, sua sponte, declaring that the Lease Agreement terminated due to the defendant’s nonpayment of rent … . There was no motion for summary judgment before the court, and the court did not afford the parties notice of any intention to deem the plaintiff’s motion, inter alia, for leave to amend the complaint, as one, among other things, for summary judgment … .

… [A] preliminary injunction may not issue unless the moving party demonstrates a probability of success on the merits, a danger of irreparable injury in the absence of an injunction, and a balance of equities in that party’s favor … . The purpose of a preliminary injunction is to maintain the status quo pending a final determination in the action or proceeding … and “not to determine the ultimate rights of the parties” … . “[A]bsent extraordinary circumstances, a preliminary injunction will not issue where to do so would grant the movant the ultimate relief to which he or she would be entitled in a final judgment” … .

Here, the plaintiff “failed to demonstrate that the circumstances were of such an extraordinary nature to justify th[e] relief that was granted pending the resolution of the action” … . County of Nassau v NY Youth Sports Network, Inc., 2026 NY Slip Op 03289, Second Dept 5-27-26

Practice Point: The appellate courts do not like “sua sponte” actions by a judge. Here the judge terminated the lease based on nonpayment in the absence of any motion requesting that relief.

Practice Point: A preliminary injunction which grants the ultimate relief sought by the plaintiff should only rarely be issued. Here the circumstances did not justify such extraordinary relief.

“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 resorted to only where personal service pursuant to CPLR 308(1) and (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. What constitutes due diligence is determined on a case-by-case basis, focusing not on the quantity of the attempts at personal delivery, but on their quality” … . “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” … . “Additionally, ‘[f]or the purpose of satisfying the due diligence requirement of CPLR 308(4), it must be shown that the process server made genuine inquiries about the defendant’s whereabouts and place of employment'” … .

Here, the plaintiff failed to demonstrate that the process server acted with due diligence before resorting to affix and mail service pursuant to CPLR 308(4) … . The process server averred that he made two prior attempts to personally serve the defendant at the property before affixing the summons and complaint to the door. However, there was no indication in the record that the process server made any genuine inquiries about the defendant’s whereabouts or place of business … . Moreover, the record reflects that the plaintiff was aware of the defendant’s employment address as of the commencement of the action, but no attempts were made to serve the defendant at his place of employment … . Castro v Castro, 2026 NY Slip Op 03287, Second Dept 5-27-26

Practice Point: Here the process server was aware of where defendant worked but did not attempt to serve defendant there before resorting to nail and mail. The process server failed to exercise due diligence and the default judgment against defendant was vacated.

“One who deals with an agent does so at his [or her] peril, and must make the necessary effort to discover the actual scope of authority” … . “Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction. The agent cannot by his [or her] own acts imbue himself [or herself] with apparent authority” … . “‘It is axiomatic that apparent authority must be based on the actions or statements of the principal'” … . “[T]he existence of apparent authority depends upon a factual showing that the third party relied upon the misrepresentations of the agent because of some misleading conduct on the part of the principal—not the agent” … . “A third party cannot rely on the alleged agent’s own action and statements, since apparent authority cannot be based upon the agent’s acts” … . Furthermore, the third party “may rely on an appearance of authority only to the extent that such reliance is reasonable” … .

Here, the corporation submitted, among other things, affidavits from its president and secretary/vice president, as well as a shareholder agreement dated December 15, 2017, and the corporation’s bylaws, which demonstrated that Wing Fung Chau held no corporate office and did not have the authority to execute the consolidated note and mortgage on behalf of the corporation, and that the corporation had not communicated to the plaintiff, as a third party, words or conduct that gave rise to the appearance and reasonable belief that Wing Fung Chau possessed authority to execute the consolidated note and mortgage on behalf of the corporation … . While the plaintiff relied on the purported bylaws it received from Wing Fung Chau that identified him as the sole shareholder of the corporation and the loan documents he signed that identified him as the president, the plaintiff produced no evidence that it took any further steps to assure itself that Wing Fung Chau had the authority to enter into the loan transaction … . Thus, the record showed only that any authority of Wing Fung Chau’s arose from his own acts, by which he could not “imbue himself with apparent authority” … . “This is especially true where, as here, the [plaintiff] failed to conduct a reasonable inquiry into the scope of [Wing Fung Chau’s] alleged authority” … . BP3 Capital, LLC v 5120 Realty Corp., 2026 NY Slip Op 03286, Second Dept 5-27-26

Practice Point: Here there is a question of fact whether the person who signed the loan documents on behalf of the corporation had the apparent authority to do so. One who deals with a purported agent must make an effort to learn the scope of the purported agent’s authority and cannot rely solely on the purported agent’s assertions.

CPLR 901(a) sets forth the five requirements for certification of a class action: “1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable; 2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members; 3. the claims or defenses of the representative parties are typical of the claims or defenses of the class; 4. the representative parties will fairly and adequately protect the interests of the class; and 5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” “These factors are commonly referred to as the requirements of numerosity, commonality, typicality, adequacy of representation and superiority” … . “[T]he court’s inquiry ‘vis-à-vis the merits is limited to a determination as to whether on the surface there appears to be a cause of action which is not a sham'” … .

… [T]he issue of whether the defendant overcharged tenants in violation of the rent stabilization laws pursuant to a fraudulent scheme predominates over the questions affecting the individual class members … . …

… [T]he plaintiffs demonstrated that they “will fairly and adequately protect the interests of the class” … . Because the plaintiffs’ attorneys had “assume[d] responsibility for litigation expenses, the [plaintiffs’] personal financial condition [was] irrelevant” … . The plaintiffs also demonstrated that a class action was the superior vehicle for addressing their allegations … . Abdelrazek v 12-15 Broadway Astoria, LLC, 2026 NY Slip Op 03283, Second Dept 5-27-26

Practice Point: Consult this decision for insight into how the criteria for a class action are applied to allegations of fraudulent rent overcharges.

On January 26, 2022, after an inquest, the court awarded the plaintiffs $188,560 in damages as against both defendants. The plaintiffs did not submit a proposed judgment until November 2022.

Thereafter, the defendants moved, inter alia, pursuant to 22 NYCRR 202.48 to dismiss the complaint as abandoned. In an order dated April 29, 2024, the Supreme Court … granted that branch of the motion. …

“Proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted” (22 NYCRR 202.48[a]; see Funk v Barry, 89 NY2d 364, 367 …). “Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown” (22 NYCRR 202.48[b]). “However, 22 NYCRR 202.48 does not apply where the court merely directs a party to submit an order or judgment without expressly directing that the order or judgment be submitted on notice” … . Here, since the Supreme Court did not direct that a judgment based on its decision after the inquest be settled or submitted on notice, the plaintiffs were not required to comply with 22 NYCRR 202.48 … . Rosenberg v Tool Time Constr. Corp., 2026 NY Slip Op 03192, Second Dept 5-20-26

Practice Point: If the judge does not direct that a proposed judgment be submitted on notice, 22 NYCRR 202.48, which requires that the judgment be submitted for signature within 60 days, does not apply.

…. [T]he defendant averred … that the underlying offense occurred within two to five years of her emigration to the United States, that she was initially hired to provide massages that did not require her to perform sex acts, and that after approximately two months, her boss moved her to another location and instructed her to perform sex acts on clients. The defendant further averred that she twice attempted to leave, but that each time her boss threatened to report the defendant’s activities to either her husband or the authorities. Moreover, in addition to her affidavit, the defendant submitted a letter from the Office of Temporary and Disability Assistance dated November 4, 2022, which stated that the defendant “me[t] the criteria for confirmation as a human trafficking victim in New York State.” Under these circumstances, the defendant’s allegations were sufficient to raise an issue of fact as to whether her participation in the offense underlying her conviction was the result of having been a victim of sex trafficking. * * *

The defendant’s averments, including that she feared for her safety if she returned to China, sufficiently alleged that a decision to reject the plea offer would have been rational … . Therefore, the defendant was also entitled to a hearing on that branch of her motion which was pursuant to CPL 440.10 to vacate the judgment on the ground that she was deprived of the effective assistance of counsel by her counsel’s allegedly erroneous advice regarding the immigration consequences of her plea … . People v L.F., 2026 NY Slip Op 03186, Second Dept 5-20-26

Practice Point: There are statutory grounds for vacation of a judgment of conviction because defendant’s participation in the offense was the result having been a victim of sex trafficking. (CPL 440.10).​