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

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 »

Posted: March 12, 2018

Purchase Agreement is Documentary Evidence Despite Being Redacted

On February 13, 2018, Justice Sherwood of the New York County Commercial Division issued a decision in Siegal v. Pearl Capital Rivis Ventures LLC, 2018 NY Slip Op. 30256(U), holding that a redacted version of a purchase agreement was documentary evidence despite the redactions, explaining: CPLR 3211(a)(1) does not explicitly define documentary evidence. As used... Read more »

Posted: March 10, 2018

Court Denies Stay Despite Necessary Party Being Bankrupt

On February 6, 2018, Justice Kornreich of the New York County Commercial Division issued a decision in D.E. Shaw Composite Holdings, L.L.C. v. TerraForm Power, LLC, 2018 NY Slip Op. 30232(U), denying a stay despite a necessary party being bankrupt, explaining: CPLR 1001 governs the necessary joinder of parties. CPLR 1001(a) provides that persons ought... Read more »

Posted: January 24, 2018

Judge Wexler Dismisses Jones Act Claims But Not Maritime Law Claims Where Beneficiary Died Prior to Asserting Claim

In a January 9, 2018 ruling, Judge Leonard D. Wexler highlighted the rigid structure applicable to negligence actions for deceased seamen under the Jones Act. (In re Wittich Bros. Marine Inc. , 15–CV-5210 (LDW)(ARL)). Practitioners often reflexively assume that a potential cause of action available to an individual will survive death and accrue to the... Read more »

Posted: November 30, 2017

Court Erred in Converting Motion to Dismiss into Motion for Summary Judgment

On November 28, 2017, the First Department issued a decision in Island Intellectual Prop. LLC v. Reich & Tang Deposit Solutions, LLC, 2017 NY Slip Op. 08311, holding that the motion court erred in converting a motion to dismiss into a motion for summary judgment, explaining: The motion court should not have entertained plaintiffs’ cross... Read more »

Posted: August 24, 2017

Letters, Affidavits and Transcripts Not 3211(a)(1) Documentary Evidence

On August 16, 2017, the Second Department issued a decision in Fox Paine & Co., LLC v. Houston Casualty Co., 2017 NY Slip Op. 06162, holding that proffered evidence was insufficient to support a motion to dismiss, explaining: A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary... Read more »

Posted: July 1, 2017

Affidavit With E-mails and Account Analysis Not Documentary Evidence

On June 13, 2017, Justice Sherwood of the New York County Commercial Division issued a decision in New York Budget Inn LLC v. Averbuch, 2017 NY Slip Op. 31296(U), denying a motion to dismiss based on documentary evidence, explaining: To succeed on a motion to dismiss pursuant to CPLR ยง 3211 (a) (1), the documentary... Read more »

Posted: May 17, 2017

First-Filed New York Action Dismissed in Favor of More Comprehensive Texas Action

On May 9, 2017, the First Department issued a decision in IRX Therapeutics, Inc. v. Landry, 2017 NY Slip Op. 03702, affirming the dismissal of a first-filed New York action in favor of a more comprehensive subsequently-filed action in Texas, explaining: [T]he motion court providently exercised its discretion in dismissing this action based on the... Read more »

Posted: March 7, 2017

No Dismissal Because of Prior Pending Action; Relief Sought Not Substantially the Same

On February 23, 2017, the First Department issued a decision in Wimbledon Financing Master Fund, Ltd. v. Bergstein, 2017 NY Slip Op. 01451, affirming the denial of a motion to dismiss based on the existence of a prior pending action, explaining: Supreme Court providently exercised its broad discretion under CPLR 3211(a)(4) to deny appellants’ motion... Read more »