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Posts Categorized: Summary Judgment

Posted: March 25, 2018

Plaintiff Not Entitled to Summary Judgment in Lieu of Complaint Because Condition Precedent For Suing on Note Not Met

On March 16, 2018, the Fourth Department issued a decision in Hogan v. Iskalo Off. Holdings III LLC, 2018 NY Slip Op. 01715, holding that a plaintiff was not entitled to summary judgment in lieu of complaint because a condition precedent for suing on a note had not been satisfied, explaining: To prevail on a… Read more »

Posted: February 11, 2018

Plaintiff Cannot Withstand Summary Judgment By Showing Question of Fact on One Element of Fraud Claim if it Fails on Another Element

On January 22, 2018, Justice Sherwood of the New York County Commercial Division issued a decision in xLon Beauty, LLC v. Day, 2018 NY Slip Op. 30142(U), holding that a plaintiff could not withstand summary judgment dismissing its fraud claim by showing that there was a question of fact regarding one element of the claim… Read more »

Posted: January 7, 2018

Summary Judgment Denied; Affidavit that Contradicts a Contemporaneous Document is Not a Sham Affidavit

On January 2, 2018, the First Department issued a decision in Kärst v. W.P. Carey Inc., 2018 NY Slip Op. 00003, holding that an affidavit that contradicted documentary evidence was not a sham affidavit, explaining: Ultimately, the parties dispute the purpose of the payments made between December 2013 and September 2014 and whether defendant did… Read more »

Posted: December 15, 2017

Judge Garaufis Denies Summary Judgment after Applying New York’s Burden-Shifting Analysis in No-Fault “Serious Injury” Claim

District Judge Nicholas G. Garaufis recently denied summary judgment in an automobile accident diversity case where plaintiff claimed a “serious injury” as defined under New York’s no-fault insurance laws. Zhang v. Alvarado, 15-CV-04373 (E.D.N.Y. Dec. 8, 2017) (NGG) (JO). In denying defendants’ summary judgment, Judge Garaufis employed New York State’s burden-shifting analysis that at first… Read more »

Posted: December 14, 2017

Judge Chen Dismisses Slip and Fall Case after Applying Federal Summary Judgment Standard

District Judge Pamela K. Chen recently granted summary judgment in a slip and fall diversity case that highlights the difference between the summary judgment standards under federal and New York state law. Taylor v. Manheim Marketing Inc., 15-CV-01950 (E.D.N.Y. Nov. 30, 2017). This case offers a reminder to counsel that the federal summary judgment standard… Read more »

Posted: November 30, 2017

Court Erred in Converting Motion to Dismiss into Motion for Summary Judgment

On November 28, 2017, the First Department issued a decision in Island Intellectual Prop. LLC v. Reich & Tang Deposit Solutions, LLC, 2017 NY Slip Op. 08311, holding that the motion court erred in converting a motion to dismiss into a motion for summary judgment, explaining: The motion court should not have entertained plaintiffs’ cross… Read more »

Posted: October 27, 2017

Summary Judgment in Lieu of Complaint Precluded by Evidence of Lack of Consideration and Fraud

On October 11, 2017, the Second Department issued a decision in Denjonbklyn, Inc. v. Rojas, 2017 NY Slip Op. 07107, holding that a motion for summary judgment in lieu of complaint was properly dismissed because of questions of consideration and fraud in the inducement, explaining: CPLR 3213 provides a means of obtaining an accelerated judgment… Read more »

Posted: August 1, 2017

Court Denies Summary Judgment Motion Due to Defendant’s Failure to Attend Deposition

On July 25, 2017, Justice Ostrager of the New York County Commercial Division issued a decision in Zoullas v. Zoullas, 2017 NY Slip Op. 31574(U), finding that a plaintiff’s claims were time-barred but nonetheless refusing to grant summary judgment because of the defendant’s failure to appear for deposition despite having been ordered to do so,… 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 »