Blogs

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

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 »

Posted: July 30, 2014

When no Present Claim and a Subsequent Dispute Would be New and Distinct, Party not Necessary Under CPLR 1001

On July 15, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in 37 E. 50th St. Corp. v. Restaurant Group Management Services, L.L.C., 2014 NY Slip Op. 31876(U), granting a defendant’s motion to dismiss on the grounds that it was not a necessary party under CPLR 1001(a). In 37 E.... Read more »

Posted: July 27, 2014

Class Not Certified When Plaintiff’s Evidence of Class Size is Insufficient

On June 24, 2014, Justice Platkin of the Albany County Commercial Division issued an opinion in Picard v. Bigsbee Enterprises, Inc., 2014 NY Slip Op. 51113(U), denying a motion for class certification for failure to establish numerosity. In Picard, the plaintiff brought a class action “premised on alleged violations of New York Labor Law §... Read more »

Posted: July 25, 2014

Even Where CPLR 3211(a)(4) Does Not Require Dismissal, Cases Can be Consolidated

On July 10, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in 11 E. 68th St. LLC v. Madison 68 Realty LLC, 2014 NY Slip Op. 31872(U), analyzing the rules for dismissal or consolidation when there are two pending actions regarding similar subject matter. In 11 E. 68th St. LLC, the... Read more »

Posted: July 23, 2014

Commercial Division Applies Delaware Demand Futility Pleading Rules

On July 3, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in David Shaev Profit Sharing Account v. Riggio, 2014 NY Slip Op. 31776(U), dismissing a derivative action for failure adequately to plead demand futility. In David Shaev Profit Sharing Account, the plaintiff filed a derivative action against the individual directors of... Read more »

Posted: July 15, 2014

Consequential Damages Not Available When Not Contemplated at the Time of Contracting

On July 2, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in Rampart Brokerage Corp. v. Ribs NY LLC, 2014 NY Slip Op. 31772(U), dismissing the plaintiff’s damages claim to the extent it sought consequential damages. In Rampart Brokerage Corp., the defendants allegedly mislead the plaintiff and its clients “as to which... Read more »