Comments on Recent Cases: May 2026

Image credit: Department of Foreign Affairs and Trade website – www.dfat.gov.au, David Attenborough at Great Barrier Reef in 2015. CC BY 4.0. Attenborough was born May 8, 1926.

Part of my work involves reading court decisions to keep abreast of how judges decide the types of cases I handle. Below, I share some thoughts on recent decisions.

Court Rejects Statement by Employee Without Knowledge of Third Party’s Practices

Employees of companies in litigation often testify about what a company did based on the employee’s general knowledge of the company’s practices, not just their firsthand knowledge of a particular action.  For example, an employee may say her company regularly sends invoices at the end of the month even if she did not send a particular invoice in question.  But rules require the employee to state the basis for her knowledge.

For example, in a recent case before the state appeals court in Manhattan, a bank employee submitted a sworn statement that the bank had mailed certain required papers to a borrower.  Relying upon those papers, the trial court ruled for the bank.  The appeals court reversed, however, since the employee did not state that she knew the business practices of the third-party vendor that actually mailed the papers on the bank’s behalf.

Decisions like this illustrate the requirements for witnesses who testify about business practices.

Court Affirms Dismissal of Defamation Claim Arising from Statements of Opinion

Defamation claims can be difficult to prove.  This is because the law protects statements of opinion from litigation, and a qualified privilege often applies that shields statements from liability unless the plaintiff can establish the defendant made the statement maliciously.

For example, in a recent case before the state appeals court in Manhattan, a park employee sued a defendant for telling the park supervisor that the employee was “disrespectful” and “unprofessional.”  The appeals court affirmed dismissal of the claim because those statements were opinions, not facts.  Moreover, a qualified privilege applied to complaints about one government employee to another within the government, and the plaintiff failed to present evidence the statements were made maliciously.

Decisions like this illustrate challenges in asserting defamation claims.  Still, this claim proceeded to summary judgment, which means the parties still had to litigate it for awhile before dismissal.  The legal shields for the defendant did not prevent the costs and burden of litigation altogether.

Court Grants Reargument Due to Legal Precedent Incorporated in Case

When a party loses an argument in litigation, she may believe the judge made a mistake.  Besides asking the appeals court to reverse, she may ask the judge for a second hearing to “reargue” the motion.  Judges do not often change their minds, but they can do so if a party provides a strong reason for them to rethink things.

For example, in a recent case before the state appeals court in Manhattan, a woman sued a university for claims arising from a contract.  The university asked the judge to dismiss the case, and the judge denied the request.  The university asked the judge for a reargument, noting that an appeals court had considered the exact same agreement, with the same parties, in another case.  The judge granted the request and, since she had not considered that decision earlier, applied the precedent to dismiss the case.  The appeals court affirmed the judge’s decision.

Cases like this illustrate why a court might allow reargument.  Even when courts do not grant reargument, parties may litigate issues twice because a losing party sought a reargument, which doubles the work and costs involved.