Posts Categorized: Summary Judgment

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 »

Posted: September 23, 2016

If Defendant Fails to Make Prima Facie Case, Court Need Not Consider Plaintiff’s Opposition

On September 14, 2016, the Second Department issued a decision in Katz v. Beil, 2016 NY Slip Op. 05977, denying defendants’ motion for summary judgment for failure to show a prima facie entitlement to judgment, explaining: In determining the individual defendants’ motion for summary judgment, the Supreme Court concluded that judgment as a matter of… Read more »

Posted: September 19, 2016

Promissory Note’s Reference to Sales Contracts Does Not Defeat Summary Judgment

On September 6, 2016, Justice Oing of the New York County Commercial Division issued a decision in Kardemir Ithalat Ihracat Ltd. Sti. v. Uniwire Trading LLC, 2016 NY Slip Op. 31681(U), holding that a promissory note’s reference to the terms of related sales contracts did not preclude the grant of summary judgment in lieu of… 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 »

Posted: May 29, 2016

Summary Judgment Motion Denied Because Made Before Joinder of Issue

On May 24, 2016, the First Department issued a decision in Stone Column Trading House Ltd. v. Beogradska Banka A.D. in Bankruptcy, 2016 NY Slip Op. 03996, upholding the denial of a premature motion for summary judgment, explaining: The motion court correctly determined that Stone Column’s motion for summary judgment was premature because it served… Read more »

Posted: March 12, 2016

Refusal to Testify at Deposition Under Fifth Amendment Not Necessarily Fatal to Defense

On March 1, 2016, Justice Sherwood of the New York County Commercial Division issued a decision in Lipman v. Shapiro, 2016 NY Slip Op. 30358(U), illustrating that notwithstanding the inference that can be drawn from of litigant invoking his Fifth Amendment right not to testify at a deposition, invoking that right is not necessarily fatal… Read more »

Posted: February 1, 2016

Affidavit Contradicting Prior Testimony Insufficient to Create a Question of Fact

On January 7, 2016, Justice Ramos of the New York County Commercial Division issued a decision in Law Offices of Zachary R. Greenhill, P.C. v. Liberty Insurance Underwriters, Inc., 2016 NY Slip Op. 30078(U), holding that an affidavit contradicting prior testimony was insufficient to create a question of fact precluding summary judgment in favor of… Read more »