Blogs

Posts Categorized: Court Rules/Procedures

Posted: April 23, 2017

Action Dismissed for Failure Timely to Respond to Demand for Complaint

On February 21, 2017, Justice Platkin of the Albany County Commercial Division issued a decision in Javoroski v. SelectQuote Insurance Service, Inc., 2017 NY Slip Op. 50465(U), dismissing an action because of the plaintiff’s failure timely to respond to a demand for a complaint. In Javoroski, the plaintiff initiated an action by filing a Summons… Read more »

Posted: March 21, 2017

Vacatur Based on Releases Denied; Defendant Failed Timely to Raise Issue

On March 7, 2017, the First Department issued a decision in Grinshpun v. Borokhovich, 2017 NY Slip Op. 01662, affirming the denial of a motion for vacatur for failing timely to bring it, explaining: Defendant failed to show, in support of vacatur pursuant to CPLR 5015(a)(2), that the agreements in which plaintiffs allegedly released him… Read more »

Posted: March 7, 2017

No Dismissal Because of Prior Pending Action; Relief Sought Not Substantially the Same

On February 23, 2017, the First Department issued a decision in Wimbledon Financing Master Fund, Ltd. v. Bergstein, 2017 NY Slip Op. 01451, affirming the denial of a motion to dismiss based on the existence of a prior pending action, explaining: Supreme Court providently exercised its broad discretion under CPLR 3211(a)(4) to deny appellants’ motion… Read more »

Posted: March 4, 2017

Motion to Correct Judgment Cannot be Used to Litigate New Issues

On February 15, 2017, Justice Ramos of the New York County Commercial Division issued a decision in DLJ Mortgage Capital, Inc. v. Hoey, 2017 NY Slip Op. 30303(U), denying a motion to correct a judgment because it sought to litigate new issues, explaining: A court has the inherent power to correct any mistake, defect or… Read more »

Posted: February 17, 2017

Guarantee of Borrower’s Obligations Under Agreement Not Document Amenable to CPLR 3213 Action

On February 14, 2017, the First Department issued a decision in PDL Biopharma, Inc. v. Wohlstadter, 2017 NY Slip Op. 01151, holding that a guarantee of a borrower’s contractual obligations was not an instrument amenable to summary judgment in lieu of complaint under CPLR 3213, explaining: The prototypical example of an instrument within the ambit… Read more »

Posted: January 12, 2017

Court Had Jurisdiction to Hear Motion for Time to Serve Despite Failure to Serve Within 120 Days

On January 10, 2017, the First Department issued a decision in Zegelstein v. Faust, 2017 NY Slip Op. 00132, holding that a trial court had jurisdiction to hear a motion for more time to serve and to amend, explaining: The court erroneously concluded that it lacked jurisdiction to entertain plaintiffs’ cross motion for leave to… Read more »

Posted: December 27, 2016

Affirmative Defense Not in Answer Not Waived Because it Was Subsequently Raised and Responded to

On December 15, 2016, the First Department issued a decision in American Stevedoring, Inc. v. Red Hook Container Terminal, LLC, 2016 NY Slip Op. 08470, holding that an affirmative defense was not waived despite not having been raised in an answer, explaining: Contrary to the motion court’s conclusion, defendant did not waive the illegality defense… Read more »

Posted: November 14, 2016

Opportunity to Comment on Proposed Changes to Commercial Division Rules

The Office of Court Administration has asked for public comment on three proposed changes to the Commercial Division rules: On October 24, 2016, the OCA proposed a new rule providing a sample forum selection clause. The proposed model forum selection clause is: THE PARTIES AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COMMERCIAL DIVISION,… Read more »