Posts Categorized: Motion to Dismiss; Motion for Judgment on the Pleadings

Posted: August 21, 2020

Standard for Amending a Complaint Lower Than Standard for Surviving a Motion to Dismiss

On August 19, 2020, the Second Department issued a decision in Katz v. Hampton Hills Assoc. Gen. Partnership, 2020 NY Slip Op. 04545, holding that a decision that the plaintiffs had met the standard for amending their complaint did not mean that they had met the higher burden needed to survive a motion to dismiss,... Read more »

Posted: February 23, 2020

Court Denies 3211(a)(1) Motion to Dismiss Based on E-mails

On February 4, 2020, Justice Cohen of the New York County Commercial Division issued a decision in Fosshage v. Mitta Water Holdings, LLC, 2020 NY Slip Op. 30296(U), denying a 3211(a)(1) motion based on e-mails, explaining: The Stockholder defendants argue that the complaint should be dismissed based upon unambiguous email evidence. According to the Stockholder... Read more »

Posted: January 17, 2020

E-mails and Unsigned Documents Not Documentary Evidence Under CPLR 3211(a)(1)

On December 18, 2019, the Second Department issued a decision in S & J Serv. Ctr., Inc. v. Commerce Commercial Group, Inc., 2019 NY Slip Op. 09049, holding that emails and unsigned documents were not documentary evidence under CPLR 3211(a)(1), explaining: On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to... Read more »

Posted: October 15, 2019

Plaintiff May Not Move to Amend Complaint After Complaint Has Been Dismissed

On October 1, 2019, the First Department issued a decision in Tanner v. Stack, 2019 NY Slip Op. 07039, holding that a plaintiff may not move to amend a complaint after that complaint has been dismissed, explaining: By the time plaintiff moved for leave to amend, the original complaint had already been dismissed; hence, there... Read more »

Posted: October 4, 2019

Action is Not First Filed Action for CPLR 3211(a)(4) Purposes if Summons With Notice is Not Followed by Complaint

On September 18, 2019, Justice Borrok of the New York County Commercial Division issued a decision in MAC Presents, LLC v. C Lewis Group, LLC, 2019 NY Slip Op. 32807(U), holding that an action brought by a summons with notice is not a first-filed action for purposes of CPLR 3211(a)(4) if that summons with notice... Read more »

Posted: August 31, 2019

Filing Amended Complaint Did Not Moot Pending Motion to Dismiss

On August 22, 2019, the Fourth Department issued a decision in Paramax Corp. v. VoIP Supply, LLC, 2019 NY Slip Op. 06267, holding that filing an amended complaint did not moot a pending motion to dismiss, explaining: Initially, we take judicial notice of an amended complaint filed by plaintiff after Supreme Court ruled on defendants’... Read more »

Posted: July 8, 2019

Policy Notices Submitted by Defendant Insurer Not 3211(a)(1) Documentary Evidence

On June 26, 2019, the Second Department issued a decision in Magee-Boyle v. Reliastar Life Ins. Co. of N.Y., 2019 NY Slip Op. 05118, holding that policy notices submitted by the defendant insurer were not documentary evidence sufficient to support a motion to dismiss under CPLR 3211(a)(1), explaining: Moreover, that branch of Reliastar’s motion which... Read more »

Posted: June 20, 2019

Group Pleading Renders Fraud Claim Insufficient

On June 7, 2019, Justice Cohen of the New York County Commercial Division issued a decision in Arent Fox LLP v. JDN AA, LLC, 2019 NY Slip Op. 31593(U), holding that group pleading rendered a fraud claim insufficient, explaining: The newly added causes of action reference alleged conduct by “Defendant” or “Defendants,” without distinguishing between... Read more »

Posted: May 18, 2019

Party Asserting Lack of Service as an Affirmative Defense Must Move for Judgment on that Defense Within 60 Days of Answering

On May 8, 2019, the Second Department issued a decision in U.S. Bank N.A. v. Roque, 2019 NY Slip Op. 03648, holding that a party asserting lack of service as an affirmative defense must move for judgment on that defense within 60 days of answering, explaining: An objection that the summons and complaint was not properly... Read more »