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Posts Categorized: Motions to Dismiss

Posted: April 21, 2016

Court Refuses to Dismiss Action Based on Insufficiently-Detailed Summons With Notice

On March 9, 2016, Justice Kornreich of the New York County Commercial Division issued a decision in Polo Electric Corp. v. Aspen America Insurance Co., 2016 NY Slip Op. 30590(U), refusing to dismiss an action on the ground that the Summons with Notice was insufficiently-detailed. In Polo Electric Corp., the court faced what it described… Read more »

Posted: March 19, 2016

Litigant Waived Right to Enforce Forum Selection Clause

On March 3, 2016, Justice Kornreich of the New York County Commercial Division issued a decision in Herman v. 36 Gramercy Park Realty Associates, LLC, 2016 NY Slip Op. 30360(U), holding that a litigant had waived the right to enforce a forum selection clause. In Herman, the defendant filed a third-party complaint, which the third-party… Read more »

Posted: November 16, 2015

Court Examines Standard for Motion to Dismiss When Defendant Submits Evidentiary Material

On November 12, 2015, the Second Department issued a decision in Shofel v. DaGrossa, 2015 NY Slip Op. 08156, denying a motion to dismiss after considering evidence submitted by the defendant, explaining: A court may consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7). Nonetheless, it… Read more »

Posted: August 1, 2015

Tortious Interference Claim Dismissed Based on Noerr-Pennington Doctrine

On July 20, 2015, Justice Kornreich of the New York County Commercial Division issued a decision in Caesars Entertainment Operating Co., Inc. v. Appaloosa Inv. L.P. I, 2015 NY Slip Op. 51095(U), dismissing a tortious interference claim based on the Noerr-Pennington doctrine. In Caesars Entertainment Operating Co., the plaintiffs claimed that, among other things, the… Posted in Commercial, First Amendment, Motions to Dismiss, Tortious Interference

Posted: July 13, 2015

Action Dismissed as Abandoned Because Plaintiff Had No Reasonable Excuse for Not Prosecuting Case

On June 17, 2015, the Second Department issued a decision in Ohio Savings Bank v. Decaudin, 2015 NY Slip Op. 05165, affirming the dismissal of an action. In Ohio Savings Bank, the defendant moved to dismiss an action as abandoned. The Second Department affirmed the trial court’s decision granting the motion, explaining: To avoid dismissal… Read more »

Posted: July 12, 2015

Court Should Not Have Allowed Party to Discontinue to Avoid Decision on Motion to Dismiss

On June 18, 2015, the First Department issued a decision in Jericho Group, Ltd. v. Mid-Town Development L.P., 2015 NY Slip Op. 05276, holding that a plaintiff should not have been allowed to discontinue an action without prejudice to avoid an adverse decision. In Jericho Group, the plaintiff filed a “notice of withdrawal of the… Read more »

Posted: April 24, 2015

Citation to Scientific Articles Saves Complaint from Dismissal in Class Action Alleging Marketing of Skin Care Cream Was False and Deceptive

In a March 31, 2015 order in Tomasino v. The Estee Lauder Companies, Inc., et al., 13-CV-4692 (EDNY March 31, 2015), Judge Edward R. Korman declined to dismiss a purported class action alleging that Estee Lauder’s marketing of a line of nighttime facial creams was false and deceptive under New York General Business Law sections… Read more »