Blogs

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

Posted: April 23, 2016

Motion to Dismiss Based on Testimony in Other Actions Denied; Questions of Fact Remain

On March 11, 2016, Justice Kornreich of the New York County Commercial Division issued a decision in Veleron Holding v. Morgan Stanley, 2016 NY Slip Op. 30594(U), refusing to dismiss claims based on testimony given by a party in another action. The dispute in Veleron Holding related to an investment in a Canadian automotive parts... Read more »

Posted: April 21, 2016

Court Refuses to Dismiss Action Based on Insufficiently-Detailed Summons With Notice

On March 9, 2016, Justice Kornreich of the New York County Commercial Division issued a decision in Polo Electric Corp. v. Aspen America Insurance Co., 2016 NY Slip Op. 30590(U), refusing to dismiss an action on the ground that the Summons with Notice was insufficiently-detailed. In Polo Electric Corp., the court faced what it described... Read more »

Posted: March 19, 2016

Litigant Waived Right to Enforce Forum Selection Clause

On March 3, 2016, Justice Kornreich of the New York County Commercial Division issued a decision in Herman v. 36 Gramercy Park Realty Associates, LLC, 2016 NY Slip Op. 30360(U), holding that a litigant had waived the right to enforce a forum selection clause. In Herman, the defendant filed a third-party complaint, which the third-party... Read more »

Posted: March 6, 2016

Complaint Should Not Have Been Dismissed Despite Difficulty of Proving Damages Alleged at Trial

On March 2, 2016, the Second Department issued a decision in Vasomedical, Inc. v. Barron, 2016 NY Slip Op. 01483, reversing the dismissal of “so much of [a] complaint as alleged that the plaintiffs sustained damages in the form of the expense of certain retention bonuses and other employment benefits they were forced to pay... Read more »

Posted: March 1, 2016

Lender Had Right to Refuse to Close Financing Transaction

On February 25, 2016, the First Department issued a decision in MCAP Robeson Apartments L.P. v. MuniMae TE Bond Subsidiary, LLC, 2016 NY Slip Op. 01414, dismissing claims against a lender that refused to close on a financing transaction, explaining: This action arises out of defendants’ decision not to proceed to a closing on a... Read more »

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 »