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Current Developments in the Commercial Divisions of the
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Posted: March 6, 2016

Complaint Should Not Have Been Dismissed Despite Difficulty of Proving Damages Alleged at Trial

On March 2, 2016, the Second Department issued a decision in Vasomedical, Inc. v. Barron, 2016 NY Slip Op. 01483, reversing the dismissal of “so much of [a] complaint as alleged that the plaintiffs sustained damages in the form of the expense of certain retention bonuses and other employment benefits they were forced to pay as a result of the defendants’ alleged misconduct,” explaining:

In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Whether a plaintiff can ultimately establish its allegations is not part of the calculus.

Here, the Supreme Court erred in granting that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the complaint as alleged that the plaintiffs sustained damages in the form of the expense of certain retention bonuses and other employment benefits they were forced to pay as a result of the defendants’ alleged misconduct. Contrary to the defendants’ contention, the plaintiffs alleged sufficient facts to show that their claimed damages in this regard were proximately caused by the defendants’ alleged misconduct.

(Internal quotations and citations omitted) (emphasis added).

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