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

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 »

Posted: October 4, 2018

Defendant May Not Move to Dismiss Claims Against Other Defendants

On September 17, 2018, Justice Sherwood of the New York County Commercial Division issued a decision in D’Angelo v. Watner, 2018 NY Slip Op. 32324(U), holding that a defendant could not move to dismiss claims against other defendants, explaining: CPLR 3211[a][8] provides that a party may move for judgment dismissing one or more causes of action... Read more »

Posted: September 26, 2018

Action Not Barred by Entire Controversy Doctrine

On August 23, 2018, Judge DeAngelis of the Morris County Superior Court (Law Division) issued a decision in Maffei v. Apex Fund Services (US), Inc., Docket No. L-63-18, refusing to dismiss an action based on the entire controversy doctrine, explaining: Defendants argue that Plaintiffs’ Complaint in the present action violates the entire controversy doctrine and... Read more »

Posted: September 4, 2018

Documents Submitted by Law Firm to Show Lack of Relationship Not Documentary Evidence Sufficient to Justify Dismissal

On August 22, 2018, The Second Department issued a decision in First Choice Plumbing Corp. v. Miller Law Offs., PLLC, 2018 NY Slip Op. 05825, holding that documents submitted by a law firm to show that it had not been engaged by the plaintiff were not documentary evidence sufficient to justify dismissal, explaining: The defendant... Read more »

Posted: September 3, 2018

Proposed Amendment Fails to Allege a Joint Venture

On August 16, 2018, Justice Masley of the New York County Commercial Division issued a decision in Washington Diamonds Corp. v. Diamonds by Israel Standard, Inc., 2018 NY Slip Op. 32030(U), denying a motion to amend because the proposed amendment failed to allege a joint venture, explaining: Defendant acknowledges that the assessment of whether an amendment is... Read more »

Posted: August 29, 2018

Court Declines to Dismiss Action Brought By Summons With Notice On Ground That it Was Insufficiently Detailed

On August 14, 2018, Justice Scarpulla of the New York County Commercial Division issued a decision in Jobar Holding Corp. v. Halio, 2018 NY Slip Op. 31982(U), declining to dismiss an action brought by summons with notice, finding that it gave sufficient notice, explaining: As the purpose of the notice is simply to provide the... Read more »

Posted: August 15, 2018

Judge Cogan Denies Motion To Dismiss Discrimination Action, Finding That Plaintiffs’ EEOC Complaint Satisfied Exhaustion Requirements Even Where Lawsuit Expanded On Allegations

Posted by Solomon N. Klein, Litigation Partner District Judge Brian M. Cogan denied a motion to dismiss where defendant argued that plaintiff failed to exhaust his administrative remedies before filing his lawsuit. Anderson v. Alclear, LLC, 18-cv-1525 (E.D.N.Y. Aug. 10, 2018) (BMC) (RML). (Interestingly, the Court ruled directly on defendant’s pre-motion conference letter, deeming the... Read more »

Posted: July 1, 2018

Court Rejects Unsigned Agreement Offered as Documentary Evidence Under 3211(a)(1)

On June 18, 2018, Justice Sherwood of the New York County Commercial Division issued a decision in Taurus Petroleum Ltd. v. Global Emerging Markets North America, Inc., 2018 NY Slip Op. 31264(U), rejecting an unsigned agreement offered as documentary evidence under CPLR 3211(a)(1), explaining: To succeed on a motion to dismiss pursuant to CPLR §... Read more »

Posted: June 7, 2018

Judge Feuerstein Grants Motion To Dismiss Where Plaintiffs Failed To Take Timely Steps To Identify Jane Doe Defendant

Posted by Solomon N. Klein, Litigation Partner District Judge Sandra J. Feuerstein dismissed an action against a Jane Doe defendant after finding that plaintiffs failed to take reasonable steps to discover the identity of the Jane Doe defendant. The Court held that “while courts ‘typically resist dismissing suits against John Doe defendants until the plaintiff... Read more »

Posted: June 7, 2018

Court Rejects 3211(a)(7) Motion That Relied on Documentary Evidence

On May 25, 2018, Justice Sherwood of the New York County Commercial Division issued a decision in Telx-New York LLC v. 60 Hudson Owner LLC, 2018 NY Slip Op. 31037(U), denying a 3211(a)(7) motion that relied on documentary evidence, explaining: On a motion to dismiss a plaintiff’s claim pursuant to CPLR § 3211(a)(7) for failure... Read more »