Blogs

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

Posted: January 13, 2016

Suit on Note Stayed in Favor of Prior Pending Foreclosure Action in Another State

On January 6, 2016, Justice Demarest of the Kings County Commercial Division issued a decision in Wells Fargo Bank, N.A. v. Pena, 2016 NY Slip Op. 26003, staying an action to collect on a note pending the determination of a mortgage foreclosure action in another state, explaining: RPAPL 1301(3) prohibits a party from commencing an... Read more »

Posted: January 5, 2016

Court Should Not Intervene to Enable Wrongdoer to Obtain Fruits of its Crime

On December 29, 2015, the First Department issued a decision in B.D. Estate Planning Corp. v. Trachtenberg, 2015 NY Slip Op. 09633, holding that a plaintiff should not be allowed to sue to enforce its rights under a fraudulently-obtained promissory note, explaining: The record reflects that plaintiff’s sole owner, principal and employee was convicted, after... Read more »

Posted: November 16, 2015

Court Examines Standard for Motion to Dismiss When Defendant Submits Evidentiary Material

On November 12, 2015, the Second Department issued a decision in Shofel v. DaGrossa, 2015 NY Slip Op. 08156, denying a motion to dismiss after considering evidence submitted by the defendant, explaining: A court may consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7). Nonetheless, it... Read more »

Posted: September 23, 2015

Claims Against Con Edison Dismissed Under Filed Rate Doctrine

On September 21, 2015, Justice Demarest of the Kings County Commercial Division issued a decision in Mont York Associates, LP v. Consolidated Edison Co. of N.Y., 2015 NY Slip Op. 51350(U), dismissing claims under the filed rate doctrine. In Mont York Associates, the plaintiff brought claims against Con Edison “seek[ing] damages for breach of contract... Read more »

Posted: August 1, 2015

Tortious Interference Claim Dismissed Based on Noerr-Pennington Doctrine

On July 20, 2015, Justice Kornreich of the New York County Commercial Division issued a decision in Caesars Entertainment Operating Co., Inc. v. Appaloosa Inv. L.P. I, 2015 NY Slip Op. 51095(U), dismissing a tortious interference claim based on the Noerr-Pennington doctrine. In Caesars Entertainment Operating Co., the plaintiffs claimed that, among other things, the... Read more »

Posted: July 22, 2015

In Deciding Motion to Amend, Court Not Required to Accept Allegations As True

On June 30, 2015, the First Department issued a decision in Boaz Bag Bag v. Alcobi, 2015 NY Slip Op. 05618, affirming the denial of a motion to amend to add a new cause of action. In Boaz Bag Bag, the First Department affirmed the trial court’s denial of the plaintiff’s motion to file an... Read more »

Posted: July 18, 2015

Action Dismissed in Favor of Other Pending Action

On May 7, 2015, Justice Grays of the Queens County Commercial Division issued a decision in A&N Food Market, Inc. v. Amerasia Bank, 2015 NY Slip Op. 30976(U), dismissing a lawsuit in favor of another pending action, explaining: Pursuant to CPLR 3211(a)( 4), a court has broad discretion in determining whether a cause of action... Read more »

Posted: July 13, 2015

Action Dismissed as Abandoned Because Plaintiff Had No Reasonable Excuse for Not Prosecuting Case

On June 17, 2015, the Second Department issued a decision in Ohio Savings Bank v. Decaudin, 2015 NY Slip Op. 05165, affirming the dismissal of an action. In Ohio Savings Bank, the defendant moved to dismiss an action as abandoned. The Second Department affirmed the trial court’s decision granting the motion, explaining: To avoid dismissal... Read more »

Posted: July 12, 2015

Court Should Not Have Allowed Party to Discontinue to Avoid Decision on Motion to Dismiss

On June 18, 2015, the First Department issued a decision in Jericho Group, Ltd. v. Mid-Town Development L.P., 2015 NY Slip Op. 05276, holding that a plaintiff should not have been allowed to discontinue an action without prejudice to avoid an adverse decision. In Jericho Group, the plaintiff filed a “notice of withdrawal of the... Read more »

Posted: April 28, 2015

Defects in Summons Require Dismissal of Action Brought By Motion For Summary Judgment In Lieu of Complaint

On April 17, 2015, Justice Scarpulla of the New York County Commercial Division issued a decision in Clinton Capital Corp. v. 635 Realty Corp., 2015 NY Slip Op 30614(U), dismissing an action brought by motion for summary judgment in lieu of complaint based on defects in the summons and service of process. The plaintiff in... Read more »