Posts Categorized: Court Rules/Procedures

Posted: September 22, 2021

Motion Court Erred in Considering Dismissal Motion Raised for First Time on Reply

On August 18, 2021, the Second Department issued a decision in Grocery Leasing Corp. v. P&C Merrick Realty Co., LLC, 2021 N.Y. Slip Op. 04701, holding that the motion court erred in granting the defendant’s motion to dismiss under C.P.L.R. 3211 when the defendant initially moved for summary judgment under C.P.L.R. 3212 and stated–for the first... Read more »

Posted: April 23, 2021

That Defendant’s Claims Against Third Party Claims Arise From Same Factual Circumstances as Complaint Insufficient Basis for a Third-Party Claim if the Third Party is not Alleged to be Liable for Plaintiff’s Claim Against Defendant

On April 5, 2021, Justice Cohen of the New York County Commercial Division issued a decision in J.G. Jewelry PTE. LTD. v. TJC Jewelry, Inc., 2021 NY Slip Op. 31095(U), holding that just because a defendant’s claims arise out of the same factual circumstances as the complaint is an insufficient basis for a third-party claim... Read more »

Posted: April 19, 2021

Good Faith and Fair Dealing Claim Rejected Because It Was Not Raised Until Summary Judgment

On April 13, 2021, the First Department issued a decision in Darabont v. AMC Network Entertainment LLC, 2021 NY Slip Op. 02240, rejecting a good faith and fair dealing claim because it was not raised until summary judgment, explaining: Plaintiffs’ claim that AMC breached the implied covenant of good faith and fair dealing by crafting... Read more »

Posted: April 4, 2021

Single Motion Rule Bars Reassertion of Arguments in Motion to Dismiss Amended Complaint that were Made and Lost in Earlier Motion to Dismiss

On March 23, 2021, the First Department issued a decision in Simon v. FrancInvest, S.A., 2021 NY Slip Op. 01733, holding that the single motion rule bars reassertion of arguments in a motion to dismiss an amended complaint that were made and lost in an earlier motion to dismiss, explaining: Preliminarily, plaintiff argues that both... Read more »

Posted: April 3, 2021

Court Dismisses Affirmative Defense That Merely Seeks to Preserve the Right Later to Assert Additional Defenses

On March 19, 2021, Justice Masley of the New York County Commercial Division issued a decision in CF 125 Holdings LLC v. VS 125 LLC, 2021 NY Slip Op. 30924(U), dismissing an affirmative defense that sought to preserve the right later to assert additional defenses, explaining: The ninth affirmative defense, which asserts the right to... Read more »

Posted: March 25, 2021

One Motion Rule Bars Parties’ Second Motions for Summary Judgment

On March 19, 2021, the Fourth Department issued a decision in Magic Circle Films Intl., LLC v. Breon, 2021 NY Slip Op. 01673, holding that the one motion rule barred successive summary judgment motions, explaining: Generally, successive summary judgment motions are disfavored absent newly discovered evidence or other sufficient cause. Here, we conclude that the... Read more »

Posted: March 15, 2021

Party’s Claims, Which Were Inconsistent With Claims it Successfully Advanced in Different Action, Barred by Judicial Estoppel

On March 4, 2021, the First Department issued a decision in Great Ajax Operating Partnership L.P. v. PCG REO Holdings, LLC, 2021 NY Slip Op. 01324, holding that a party’s claims, which were inconsistent with claims it successfully advanced in a different action, were barred by the doctrine of judicial estoppel, explaining: Plaintiff’s claims arising... Read more »

Posted: March 11, 2021

Referee Erred in Deciding a Contested Application Without Holding a Hearing

On February 10, 2021, Justice Knipel of the Kings County Commercial Division issued a decision in 52 Monitor St. Lender LLC v. 52 Monitor St. Realty, LLC, 2021 NY Slip Op. 30581(U), holding that a referee erred in deciding a contested application without holding a hearing, explaining: The report of a referee should be confirmed... Read more »