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

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 »

Posted: August 27, 2016

Motion to Amend Denied for Failure to Show or Explain and Justify Changes

On August 17, 2016, Justice Sherwood of the New York County Commercial Division issued a decision in E&B Giftware, LLC v Mauer, 2016 NY Slip Op. 31569(U), denying a motion to amend, explaining: In order to conserve judicial resources, examination of the underlying merit of the proposed amendment is mandated. Leave will be denied where... Read more »

Posted: August 5, 2016

Fact Questions Regarding Board’s Good Faith Valuation of Shares Precludes Dismissal

On July 25, 2016, Justice Singh of the New York County Commercial Division issued a decision in Saleeby v. Remco Maintenance, LLC, 2016 NY Slip Op. 31447(U), holding that questions of fact precluded dismissal of a claim that a board’s valuation of shares was not made in good faith, explaining: The gravamen of the case... Read more »

Posted: July 27, 2016

Complaint Dismissed, Fees Awarded, for Disclosing Confidential Settlement Negotiations

On July 12, 2016, Justice Ramos of the New York County Commercial issued a decision in Board of Managers of 823 Park Avenue Condominium v. 823 Park Avenue LLC, 2016 NY Slip Op. 31328(U), sanctioning a plaintiff for disclosing confidential settlement negotiations. In Board of Managers of 823 Park Avenue Condominium, the parties to a... Read more »

Posted: June 26, 2016

Law of the Case Does Not Apply When a Summary Judgment Motion Follows Motion to Dismiss

On June 15, 2016, Justice Bransten of the New York County Commercial Division issued a decision in Korff v. Corbett, 2016 NY Slip Op. 31127(U), holding that the law of the case doctrine did not make determinations made on a motion to dismiss binding on summary judgment, explaining: In support of his motion seeking judgment... Read more »

Posted: May 2, 2016

No Stay Of EDNY Case Pending Resolution Of Related Foreign Country Action

Judge Brian Cogan denied a motion to stay plaintiff’s antitrust case pending resolution of an earlier filed, related action brought by defendants in the Netherlands, in Schenker A.G. v. Societe Air France, et al., No. 14-Civ.-4711 (E.D.N.Y. Apr. 14, 2016). The plaintiff was a freight forwarder and the defendants were air carriers. The complaint alleged... Read more »