Blogs

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

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 »

Posted: July 14, 2014

Insurer Could Not Use Tort Theory to Transfer Back to Insured Risks the Insurer Had Assumed

On July 3, 2014, Justice Kornreich of the New York County Commercial Division issued a decision in Assured Guaranty Municipal Corp. v. DLJ Mortgage Capital, Inc., 2014 NY Slip Op. 51044(U), dismissing fraud claims that sought to hold an insured liable, on a tort theory, for risks the insurer had assumed. In Assured Guaranty, the... Read more »

Posted: July 1, 2014

Contract and Quasi-Contract Claims Based On Oral Modification to Contract Survive Despite “No Oral Modification” Clause

On June 25, 2014, Justice Demarest of the Kings County Commercial Division issued a decision in Laquila Group, Inc. v. Hunt Construction Group, Inc., 2014 NY Slip Op. 51007(U), refusing to dismiss claims based on alleged oral modifications to a contract that prohibited oral modifications. The dispute in Laquila Group, related to construction work on the... Read more »

Posted: June 14, 2014

Personal Guaranty Unenforceable Because Loan was Usurious

On June 3, 2014, Justice Demarest of the Kings County Commercial Division issued a decision in Sasidharan v. Piverger, 2014 NY Slip Op. 50890(U), refusing to enforce a personal guaranty because the loan it guaranteed was usurious. In Sasidharan, the plaintiffs sued a guarantor for payment on a guaranty. The trial court granted the guarantor’s motion... Read more »

Posted: June 10, 2014

Boilerplate Affirmative Defenses are Subject to Dismissal

On June 4, 2014, Justice Demarest of the Kings County Commercial Division issued a decision in Amazon Properties US, LLC v. Park Avenue Bank, 2014 NY Slip Op. 50862(U), dismissing boilerplate affirmative defenses. In Amazon Properties, the plaintiff sued for “breach of contract, breach of the implied covenant of good faith and fair dealing, interference... Read more »