Posts Categorized: Motion to Dismiss; Motion for Judgment on the Pleadings

Posted: May 17, 2017

First-Filed New York Action Dismissed in Favor of More Comprehensive Texas Action

On May 9, 2017, the First Department issued a decision in IRX Therapeutics, Inc. v. Landry, 2017 NY Slip Op. 03702, affirming the dismissal of a first-filed New York action in favor of a more comprehensive subsequently-filed action in Texas, explaining: [T]he motion court providently exercised its discretion in dismissing this action based on the… 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: February 20, 2017

First-in-Time Analysis Under CPLR 3211(a)(4) Based on Filing of Summons With Notice

On January 12, 2017, Justice Rosenbaum of the Monroe County Commercial Division issued a decision in Quatro Consulting Group, LLC v. Buffalo Hotel Supply Co., Inc., 2017 NY Slip Op. 27032, holding that an action commenced by filing of a summons with notice was first-in-time for purposes of CPLR 3211(a)(4) even though the complaint in… Read more »

Posted: November 4, 2016

Dismissal of Subsequent New York Action Under First-in-Time Rule Proper

On October 26, 2016, the Second Department issued a decision in Seneca Specialty Insurance Co. v. T.B.D. Capital, LLC, 2016 NY Slip Op. 07017, upholding the dismissal of an action under the first-in-time rule. Pursuant to CPLR 3211(a)(4), a party may move for judgment dismissing one or more causes of action asserted against him on… Read more »

Posted: November 3, 2016

Action Should Have Been Dismissed Under First-to-File Rule

On October 27, 2016, the First Department issued a decision in Wachtell, Lipton, Rosen & Katz v. CVR Energy, Inc., 2016 NY Slip Op. 07091, holding that an action should have been dismissed under the first-to-file rule, explaining: The court improvidently exercised its discretion in declining to dismiss the claim for a declaratory judgment against… Read more »

Posted: August 31, 2016

Plaintiff Required to Replead Alleged Oral Agreement With More Detail

On August 19, 2016, Justice Kornreich of the New York County Commercial Division issued a decision in Slabakis v Schik, 2016 NY Slip Op. 31584(U), requiring a plaintiff to replead an alleged oral contract in more detail, explaining: The doctrine of definiteness or certainty is well established in contract law. In short, it means that… Read more »

Posted: August 27, 2016

Motion to Amend Denied for Failure to Show or Explain and Justify Changes

On August 17, 2016, Justice Sherwood of the New York County Commercial Division issued a decision in E&B Giftware, LLC v Mauer, 2016 NY Slip Op. 31569(U), denying a motion to amend, explaining: In order to conserve judicial resources, examination of the underlying merit of the proposed amendment is mandated. Leave will be denied where… Read more »

Posted: August 5, 2016

Fact Questions Regarding Board’s Good Faith Valuation of Shares Precludes Dismissal

On July 25, 2016, Justice Singh of the New York County Commercial Division issued a decision in Saleeby v. Remco Maintenance, LLC, 2016 NY Slip Op. 31447(U), holding that questions of fact precluded dismissal of a claim that a board’s valuation of shares was not made in good faith, explaining: The gravamen of the case… Read more »

Posted: July 27, 2016

Complaint Dismissed, Fees Awarded, for Disclosing Confidential Settlement Negotiations

On July 12, 2016, Justice Ramos of the New York County Commercial issued a decision in Board of Managers of 823 Park Avenue Condominium v. 823 Park Avenue LLC, 2016 NY Slip Op. 31328(U), sanctioning a plaintiff for disclosing confidential settlement negotiations. In Board of Managers of 823 Park Avenue Condominium, the parties to a… 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 »