Blogs

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

Posted: November 23, 2013

Jurisdictional Claims Survive But Only Jurisdictional Discovery Allowed

On November 20, 2013, the Second Department issued a decision in Goel v. Ramachandran, 2013 N.Y. Slip Op. 07708, illustrating the liberal standard applied to jurisdictional claims prior to discovery. In Goel, the plaintiffs alleged that there was jurisdiction over a foreign defendant because it was a “mere department of” its US parent. The Second... Read more »

Posted: November 17, 2013

Contract-Related Claims Dismissed Despite Allegation that Provisions Were Added Surreptitiously or by Mistake

On November 14, 2013, the First Department issued a decision in VFS Fin. v. Insurance Servs. Corp., 2013 NY Slip Op. 07576, illustrating the bedrock principle of contract interpretation that a party is presumed to have read and understood the contract it signed. In VFS Fin., the defendant asserted “counterclaims and third-party claims of fraud in... Read more »

Posted: November 16, 2013

Claim for Breach of NDA Allowed to Proceed While All Tort Claims Relating to the Alleged Breach Are Dismissed on the Pleadings

On November 7, 2013, Justice Schweitzer of the New York County Commercial Division issued a decision in Affinity LLP v. GfK Mediamark Research & Intelligence, LLC, 2013 NY Slip Op. 32873(U), in which he denied a pre-Answer motion to dismiss a claim alleging the breach of a non-disclosure agreement (“NDA”) but granted the motion insofar as... Read more »

Posted: November 16, 2013

Decision Illustrates the Danger of Overreaching in Pleading

On November 7, 2013, Justice Schweitzer of the New York County Commercial Division issued a decision in U.S. Bank Natl. Assoc. v. Lightstone Holdings LLC, 2013 NY Slip Op. 32874(U), illustrating the dangers of overreaching in pleading. In U.S. Bank, the plaintiff amended its complaint in what had been a breach of contract action to... Read more »

Posted: November 14, 2013

Lease Clause Requiring Commercially Reasonable Efforts Strictly Construed Against Plaintiffs

On November 14, 2013, the Court of Appeals issued a decision in JFK Holding Company LLC v. City of New York, Docket No. 196, declining to apply a broad interpretation to a commercially reasonable efforts clause. In JFK Holding, plaintiff building owners sued the Salvation Army, “which operated” a building leased from plaintiffs “as a homeless... Read more »

Posted: November 9, 2013

Foreign Derivative Claims Face Hurdles in NY Courts

On October 22, 2013, Justice Schweitzer of the New York County Commercial Division issued a decision in Gutstadt v. National Financial Partners Corp., 2013 NY Slip Op. 32733(U), illustrating the many hurdles that shareholders of foreign corporations face when they try to bring shareholder derivative suits against New York residents. Gutstadt was brought by two... Read more »

Posted: October 30, 2013

Res Judicata Bars Claims Arising During Prior Lawsuit

On October 29, 2013, the First Department issued a decision in Jumax Assoc. v. 350 Cabrini Owners Corp., 2013 NY Slip Op. 06992, illustrating the scope of the doctrine of res judicata. Jumax had previously commenced an action in 2002 seeking to recover fees that had been paid to defendant co-op pursuant to a license... Read more »

Posted: October 29, 2013

Documentary Evidence Refutes Allegation that Defendant was Party to Contract

On October 16, 2013, the Second Department issued a decision in Kalmon Dolgin Affiliates, Inc. v. Tonacchio, 2013 NY Slip Op. 06660, illustrating the importance of the documentary evidence prong of a motion to dismiss and its usefulness in dismissing a claim at the beginning of an action. In Kalmon Dolgin, the Second Department partially... Read more »