Blogs

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

Posted: March 4, 2014

Unjust Enrichment Claim Viable Even Though Defendant Committed No Wrongful Act Against the Defendant

On February 26, 2014, the Second Department issued a decision in Alan B. Greenfield, M.D., P.C. v. Beach Imaging Holdings, LLC, 2014 NY Slip Op. 01285, reversing the dismissal of an unjust enrichment claim. In Greenfield, the trial court dismissed the plaintiff’s claim for unjust enrichment. The Second Department reversed, ruling that: The essential inquiry... Read more »

Posted: March 1, 2014

Settlement Term Sheet Enforceable Despite Statement That Formal Papers Would Be Executed

On February 27, 2014, the First Department issued a decision in Trolman v. Trolman, Glaser & Lichtman, P.C., 2014 NY Slip Op. 01396, affirming the enforcement of a settlement term sheet, explaining: The motion court properly determined that the handwritten memorandum executed following mediation between the parties was a binding and enforceable settlement agreement, and not... Read more »

Posted: February 23, 2014

Complaint to Reform Contract Dismissed for Failure to Join All Parties to Contract

On February 5, 2014, New York County Commercial Division Justice Bransten issued a decision in Oppenheimerfunds, Inc. v. TD Bank, N.A., 2014 NY Slip Op. 30379(U), granting a motion to dismiss for failure to join necessary parties. Oppenheimerfunds arose from a liquidation relating to an ethanol plant, of which plaintiffs were subordinate bondholders. The plaintiffs alleged... Read more »

Posted: February 19, 2014

Court Grants Reargument When it Fails to Address Argument Made in Footnote

On February 6, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in Eden Roc, LLLP v. Marriott International, Inc., 2014 NY Slip Op. 30377(U), granting a motion for reargument. In Eden Roc, the trial court denied the defendants’ motion to dismiss with respect to the plaintiff’s cause of action for... Read more »

Posted: February 18, 2014

Case Against New Jersey Defendants Dismissed for Lack of Personal Jurisdiction

On February 18, 2014, the First Department issued a decision in SunLight General Capital LLC v. CJS Investments Inc., 2014 NY Slip Op. 01118, affirming a dismissal for lack of personal jurisdiction. In SunLight General Capital, the defendants, “CJS” and “Clean Solar,” were “New Jersey entities, with offices and employees located solely within the State of New Jersey, and... Read more »

Posted: February 7, 2014

Defendants Succeed in Limiting Most of the Categories of Damages in Lawsuit; Punitive Damages Claim Survives

On January 23, 2014, Justice Marks of the New York County Commercial Division issued a decision in Johnson v. Rose, 2014 NY Slip Op. 30262(U), limiting the categories of damages available in that action. In Johnson, the plaintiffs brought “fraud, legal malpractice and other claims” against a law firm and two of its partners “arising... Read more »

Posted: February 6, 2014

Motion to Dismiss May be Used to Limit Damages Theories Even if Claims Survive

On February 5, 2014, the Second Department issued a decision in Hecht v. Andover Associates Management Corp., 2014 NY Slip Op. 00632, discussing the dismissal of damages claims on a motion to dismiss. Hecht is one of the myriad cases relating to the Bernard Madoff Ponzi scheme. One of the defendants in Hecht, an independent auditor,... Read more »

Posted: February 4, 2014

Landlord’s Alleged Role in Frustrating Achievement of Contract’s Purpose Allows Claim for Breach of Duty of Good Faith and Fair Dealing to Survive Motion to Dismiss

On January 22, 2014, Justice Kornreich of the New York County Commercial Division issued a decision in Gelita, LLC v. 133 Second Ave., LLC, 2014 NY Slip Op. 50064(U), refusing to dismiss a claim for breach of the duty of good faith and fair dealing. Among the many claims brought by the plaintiff that the... Read more »

Posted: February 1, 2014

Derivative Action Dismissed for Failure Adequately to Plead Demand Futility

On January 21, 2014, Justice Kapnick of the New York County Commercial Division issued a decision in Kebis v. Azzurro Capital Inc., 2014 NY Slip Op. 30171(U), dismissing a derivative action for failure adequately to plead demand futility. In Kebis, the plaintiff brought a derivative action against a corporation’s board of directors alleging “breaches of fiduciary duties... Read more »

Posted: January 7, 2014

Failure To Comply With Pre-Suit Notice Requirement Nullifies Action

On January 3, 2014, Justice Bransten of the New York County Commercial Division issued a decision in Home Equity Asset Trust 2006-5 (Heat 2006-5) v. DLJ Mortgage Capital, Inc., 2014 NY Slip Op. 50001(U), granting a motion to dismiss under the statute of limitations. The court rejected the defendant’s first argument–that the summonses with notice... Read more »