Posts Categorized: Court Rules/Procedures

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 »

Posted: September 29, 2016

RMBS Suit Stayed in Favor of Prior Pending Action in Wisconsin

On September 20, 2016, Justice Friedman of the New York County Commercial Division issued a decision in Ambac Assurance Corp. v. Countrywide Home Loans, Inc., 2016 NY Slip Op 31748(U), staying an RMBS insurer action in favor of a prior pending action in Wisconsin, explaining: CPLR 2201 provides that except where otherwise prescribed by law,… Read more »

Posted: July 21, 2016

Actions Dismissed on Standing Grounds May be Refiled Pursuant to CPLR 205

On July 7, 2016, the First Department issued a decision in U.S. Bank N.A v. DLJ Mortgage Capital, Inc., 2016 NY Slip Op. 05440, analyzing whether an action dismissed on standing grounds can be refiled pursuant to CPLR 205. The court explained: This action was originally commenced within the statute of limitations period by Federal… Read more »

Posted: June 26, 2016

Law of the Case Does Not Apply When a Summary Judgment Motion Follows Motion to Dismiss

On June 15, 2016, Justice Bransten of the New York County Commercial Division issued a decision in Korff v. Corbett, 2016 NY Slip Op. 31127(U), holding that the law of the case doctrine did not make determinations made on a motion to dismiss binding on summary judgment, explaining: In support of his motion seeking judgment… Read more »