Blogs

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

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 »

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 »