Blogs

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

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 »

Posted: May 15, 2018

Invoking CPLR 3212 and Commercial Division Rule 9, Justice Scarpulla Conducts Immediate Hearing to Resolve Factual Dispute

On May 2, 2018, Justice Scarpulla of the New York County Commercial Division issued a decision in Overtime Partners, Inc. v. 320 W. 31st Assoc., LLC, 2018 NY Slip Op. 30807(U), invoking CPLR 3212 and Commercial Division Rule 9 in conducting an immediate hearing on the only factual issue in dispute in an action for,… Read more »

Posted: May 10, 2018

Judge Garaufis denies insurer’s motion to dismiss in lawsuit involving “ordinary traffic accident with an international twist”

Posted by Solomon N. Klein, Litigation Partner District Judge Nicholas G. Garaufis denied an insurer’s motion to dismiss a lawsuit brought directly by a plaintiff against the insurer of a vehicle that belonged to the Principality of Monaco. The Court ruled that the lawsuit was proper under the Diplomatic Relations Act of 1978, despite the… Read more »

Posted: May 10, 2018

Claim Dismissed for Being “Conclusory and Lacking in Factual Specificity”

On May 3, 2018, the First Department issued a decision in Publications International, Ltd. v. Phoenix International Publications, Inc., 2018 NY Slip Op. 03204, dismissing a counterclaim for being “conclusory and lacking in factual specificity,” explaining: Even accepting the allegations as true and affording counterclaim plaintiff (Phoenix) every possible favorable inference, we find that the… Read more »

Posted: April 20, 2018

Law Office Error Excused; Motion to Compel Plaintiff to Accept Answer Granted

On April 12, 2018, the First Department issued a decision in Naber Electric v. Triton Structural Concrete, Inc., 2018 NY Slip Op. 02562, upholding the grant of a motion to compel a plaintiff to accept a late-filed answer, explaining: The motion court providently exercised its discretion in denying plaintiffs’ motion and granting defendants’ cross motion… Read more »

Posted: April 11, 2018

Judge Garaufis Denies Motion to Dismiss and Holds that Taiwan is Not bound to Warsaw Convention despite China’s Accession to the Treaty

Posted by Solomon N. Klein, Litigation Partner In a case of first impression in the Second Circuit, District Judge Nicholas G. Garaufis held that China’s agreement to join the Warsaw Convention does not apply to a dispute involving spoiled cherries shipped from Chile to Taiwan. Allianz Global Risks US Ins. Co. v. Latam Cargo USA,… Read more »

Posted: April 5, 2018

Defendant Waived Personal Jurisdiction Defense by Not Moving to Dismiss Within 60 Days of Answer

On March 28, 2018, the Second Department issued a decision in Wells Fargo Bank, N.A. v. Cajas, 2018 NY Slip Op. 02159, holding that a defendant waived his personal jurisdiction defense by failing to move to dismiss the complaint within 60 days of serving his answer, explaining: In June 2013, the plaintiff commenced this action… Read more »

Posted: March 23, 2018

Prior Tenant Not Necessary Party to Action for Damages Arising From Later Tenant’s Tenancy

On March 20, 2018, the First Department issued a decision in Almah LLC v. AIG Empl. Servs., Inc., 2018 NY Slip Op. 01870, holding that a prior tenant was not a necessary party to an action for damages arising from a later tenancy, explaining: Pursuant to section 7.1(a) of the lease, which is the basis… Read more »