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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: July 31, 2018

Court Erred in Granting Summary Judgment on Dismissing Plaintiff’s Claims Where Defendant Only Moved for Judgment on its Counterclaims

On July 25, 2018, the Second Department issued a decision in Philogene v. Duckett, 2018 NY Slip Op. 05507, holding that the trial court erred in granting summary judgment dismissing the plaintiff’s claims when the defendant had only moved for judgment on its counterclaims, explaining:

On a motion for summary judgment, the court is limited to the issues or defenses that are the subject of the motion before the court. Here, since the defendant moved for summary judgment only on his counterclaim for the judicial dissolution of Verity, the Supreme Court should not have searched the record and awarded summary judgment to the defendant dismissing the complaint.

(Internal citations omitted).

Cases in the Commercial Division of the New York courts usually involve a motion to dismiss at the outset and then a motion for summary judgment at the close of discovery, so such motions are a big part of our practice. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions about seeking or opposing a motion for pre-trial dismissal of a commercial lawsuit.

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