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Current Developments in the Commercial Divisions of the
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Posted: October 4, 2018

Defendant May Not Move to Dismiss Claims Against Other Defendants

On September 17, 2018, Justice Sherwood of the New York County Commercial Division issued a decision inĀ D’Angelo v. Watner, 2018 NY Slip Op. 32324(U), holding that a defendant could not move to dismiss claims against other defendants, explaining:

CPLR 3211[a][8] provides that a party may move for judgment dismissing one or more causes of action asserted against him on the ground that the court has not jurisdiction of the person of the defendant. When presented with a motion under CPLR 3211[a][8], the party seeking to assert personal jurisdiction, the plaintiff, bears the ultimate burden of proof on this issue. The party opposing a motion to dismiss need not state all the facts necessary to establish jurisdiction. If evidence of the facts establishing jurisdiction are in the exclusive control of the moving party, CPLR 3211[d] only a requires a sufficient start, demonstrating that such facts may exist.

The language of CPLR 3211 does not contemplate moving to dismiss a claim against a different party. Nor does defendant cite any law suggesting he may do so.

(Internal citations and quotations omitted).

This decision relates to the New York procedural rules allowing a claim to be dismissed at the outset of a case. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding whether a claim against you can be dismissed at the pleadings stage.

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