Blogs

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

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 »

Posted: May 6, 2014

Defamation Claim Dismissed Because Not Pled With Particularity

On April 23, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in Patterson v. Wilhelmina Intl., Ltd., 2014 NY Slip Op. 31092(U), dismissing a defamation claim because it was not pled with particularity. In Patterson, the defendant moved to dismiss the plaintiff’s defamation claim. The court granted the motion because... Read more »

Posted: May 3, 2014

No Fraud Without Justifiable Reliance on Alleged Misrepresentation

On May 1, 2014, the First Department issued a decision in Mosaic Caribe, Ltd. v. AllSettled Group, Inc., 2014 NY Slip Op. 03024, dismissing a fraud claim because the alleged reliance was not justifiable. In Mosaic Caribe, the First Department affirmed the denial of the plaintiff’s motion to amend. Among the issues the First Department addressed... Read more »

Posted: April 28, 2014

Damages Limitations Clause Enforceable Even When it Leaves Plaintiff Without a Remedy

On April 14, 2014, Justice Pines of the Suffolk County Commercial Division issued a decision in J. Petrocelli Contracting, Inc. v. The Morganti Group, Inc., 2014 NY Slip Op. 31024(U), dismissing a claim based on construction delays where the parties’ contract excluded such claims. In J. Petrocelli Contracting, the plaintiff (as subcontractor) entered into a subcontract agreement with the... Read more »

Posted: April 20, 2014

Malicious Prosecution and Abuse of Process Claims Dismissed for Failure to Meet Heavy Pleading Burden

On April 8, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in Khandalavala v. Artsindia.com, LLC, 2014 NY Slip Op. 30939(U), explaining the legal standards applicable to counterclaims for malicious prosecution and abuse of process. In an action brought by investors alleging mismanagement of an art investment fund, the defendants... Read more »

Posted: April 5, 2014

Compliance with Notice and Cure Provision Condition Precedent to Bringing Suit

On March 28, 2014, the Fourth Department issued a decision in Accadia Site Contracting, Inc. v. Erie County Water Authority, 2014 NY Slip Op. 02194, affirming the dismissal of a breach of contract claim for failure to provide notice and an opportunity to cure. In Accadia Site Contracting, the plaintiff sought to excuse its failure... Read more »