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

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 § 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 »

Posted: February 20, 2017

First-in-Time Analysis Under CPLR 3211(a)(4) Based on Filing of Summons With Notice

On January 12, 2017, Justice Rosenbaum of the Monroe County Commercial Division issued a decision in Quatro Consulting Group, LLC v. Buffalo Hotel Supply Co., Inc., 2017 NY Slip Op. 27032, holding that an action commenced by filing of a summons with notice was first-in-time for purposes of CPLR 3211(a)(4) even though the complaint in... Read more »

Posted: December 26, 2016

Court Agrees to Decide Late-Filed Motion to Dismiss

On December 8, 2016, Justice Scarpulla of the New York County Commercial Division issued a decision in Magder v. Lee, 2016 NY Slip Op. 32440(U), deciding a motion to dismiss even though it was untimely, explaining: A pre-answer motion to dismiss, pursuant to CPLR 3211(a), must be made before service of the responsive pleading is... Read more »

Posted: November 4, 2016

Dismissal of Subsequent New York Action Under First-in-Time Rule Proper

On October 26, 2016, the Second Department issued a decision in Seneca Specialty Insurance Co. v. T.B.D. Capital, LLC, 2016 NY Slip Op. 07017, upholding the dismissal of an action under the first-in-time rule. Pursuant to CPLR 3211(a)(4), a party may move for judgment dismissing one or more causes of action asserted against him on... Read more »

Posted: November 3, 2016

Action Should Have Been Dismissed Under First-to-File Rule

On October 27, 2016, the First Department issued a decision in Wachtell, Lipton, Rosen & Katz v. CVR Energy, Inc., 2016 NY Slip Op. 07091, holding that an action should have been dismissed under the first-to-file rule, explaining: The court improvidently exercised its discretion in declining to dismiss the claim for a declaratory judgment against... Read more »

Posted: August 31, 2016

Plaintiff Required to Replead Alleged Oral Agreement With More Detail

On August 19, 2016, Justice Kornreich of the New York County Commercial Division issued a decision in Slabakis v Schik, 2016 NY Slip Op. 31584(U), requiring a plaintiff to replead an alleged oral contract in more detail, explaining: The doctrine of definiteness or certainty is well established in contract law. In short, it means that... Read more »