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

Posted: April 24, 2015

Citation to Scientific Articles Saves Complaint from Dismissal in Class Action Alleging Marketing of Skin Care Cream Was False and Deceptive

In a March 31, 2015 order in Tomasino v. The Estee Lauder Companies, Inc., et al., 13-CV-4692 (EDNY March 31, 2015), Judge Edward R. Korman declined to dismiss a purported class action alleging that Estee Lauder’s marketing of a line of nighttime facial creams was false and deceptive under New York General Business Law sections... Read more »

Posted: April 9, 2015

E-mail Correspondence Can Be Documentary Evidence Under CPLR 3211(a)(1)

On April 2, 2015, the First Department issued a decision in Kolchins v. Evolution Markets, Inc., 2015 NY Slip Op. 02863, addressing a motion to dismiss on documentary evidence. In Kolchins, the plaintiff and his employer, a finance firm, had a three-year employment agreement beginning September 1, 2009, which provided for base compensation and a... Read more »

Posted: April 8, 2015

Claim for Breach of Covenant of Good Faith Permissible Where Not Duplicative

On April 2, 2015, the First Department issued a decision in Delta Dallas Alpha Corp. v. South St. Seaport L.P., 2015 NY Slip Op. 02861, affirming a decision allowing a plaintiff to add a claim for breach of the covenant of good faith and fair dealing. In Delta Dallas Alpha Corp., the First Department affirmed... Read more »

Posted: April 6, 2015

Client Q&A: How can I get rid of a baseless lawsuit without going all the way to trial?

How can I get rid of a baseless lawsuit without going all the way to trial? By Vitali S. Rosenfeld To state the obvious, litigation is time-consuming and expensive. Litigating a business dispute all the way to trial is likely to take years and may cost thousands or even millions of dollars. If you have... Read more »

Posted: March 29, 2015

Court Explores Scope of One Motion Rule

On March 20, 2015, Justice Sherwood of the New York County Commercial Division issued a decision in SGM Holdings LLC v. Lisiak, 2015 NY Slip Op. 30411(U), applying the one motion rule. In SGM Holdings, the plaintiffs opposed a motion to dismiss their amended complaint on, among other grounds, the basis of the one motion... Read more »

Posted: November 6, 2014

Forum Selection Clause Not Enforced When Neither Parties Nor Agreement Connected to Chosen Forum

On November 5, 2014, the Second Department issued a decision in U.S. Merchandise, Inc. v L&R Distributors, Inc., 2014 NY Slip Op. 07495, refusing to enforce a forum selection clause. In U.S. Merchandise, the Second Department reversed a trial court decision dismissing an action because the parties’ contract contained a forum selection clause providing for... Read more »

Posted: September 28, 2014

Post-Answer Motion to Dismiss Converted to Motion for Summary Judgment

On September 18, 2014, Justice Emerson of the Suffolk County Commercial Division issued a decision in Sriram v GCC Enterprises, Inc., 2014 NY Slip Op. 32448(U), converting a motion to dismiss based on documentary evidence to one for summary judgment. In Sriram, the defendant moved to dismiss the complaint. The trial court converted the motion... Read more »

Posted: September 3, 2014

First Department Decisions Address Use of Emails As “Documentary Evidence” For Motion to Dismiss

On August 28, 2014, the First Department issued decisions in Amsterdam Hospitality Group, LLC v. Marshall-Alan Assoc., Inc., 2014 NY Slip Op. 06007, and Art & Fashion Group Corp. v. Cyclops Production, Inc., 2014 NY Slip Op. 06008, addressing the use of email correspondence as “documentary evidence” for purposes of a motion to dismiss. One... Read more »

Posted: August 27, 2014

Italian Forum Selection Clause Contained In Order Confirmation Form Upheld

In Allied Dynamics Corp. v. Kennametal, Inc., 12-CV-5904 (JFB)(AKT) (E.D.N.Y. Aug. 5, 2014), Judge Joseph F. Bianco granted defendants’ motion to dismiss plaintiff’s claims for breach of contract and tort based on improper venue. Plaintiff, a New York manufacturer of turbine parts, had ordered blade parts from defendant, an Italian company, for gas turbine assembly.... Read more »

Posted: August 26, 2014

Pro Se Plaintiff Should Have Been Allowed To Amend Complaint

On August 19, 2014, the Second Circuit issued a decision in Garay v. Novartis Pharmaceuticals Corp., 13-3762-CV, reversing a denial by the EDNY of leave to amend a complaint that had been dismissed on the pleadings. In Garay, the EDNY dismissed with prejudice a pro se plaintiff’s age discrimination and retaliation claims. The Second Circuit affirmed the dismissal,... Read more »