Blogs

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

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 »

Posted: May 15, 2019

Joining Co-Defendants’ Motion to Dismiss Tolled Party’s Time to Answer

On May 2, 2019, the First Department issued a decision in Levine v Singal, 2019 NY Slip Op. 03438, holding that joining a co-defendant’s motion to dismiss tolled a party’s time to answer, explaining: Defendant’s time to answer the complaint was extended by virtue of its serving a notice of motion, together with its co-defendants, seeking... Read more »

Posted: April 30, 2019

Court Should Not Have Sua Sponte Dismissed Action for Want of Prosecution

On April 10, 2019, the Second Department issued a decision in Marinello v. Marinello, 2019 NY Slip Op. 02697, holding that trial court should not have sua sponte dismissed an action for want of prosecution, explaining: The Supreme Court should not have, in effect, pursuant to CPLR 3216, sua sponte, dismissed the amended complaint, as the... Read more »

Posted: March 7, 2019

Action Dismissed For Failure Timely to Serve Summons and Complaint

On February 7, 2019, Justice Platkin of the Albany County Commercial Division issued a decision in Plank, LLC v. Dutch Vil., LLC, 2019 NY Slip Op. 50188(U), dismissing an action for failure timely to serve the summons and complaint, explaining: CPLR 306-b requires service of process to be made within 120 days of the filing of... Read more »