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New York Commercial Division Case Compendium A Searchable Database of Court Decisions Issued by New York’s Commercial Division

Category Archives: Kings

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Court Stays Action, Rather Than Dismiss, Despite Simultaneous Similar Action Between Same Parties in NJ, Where Full Relief Might Not Be Afforded in NJ Action

Posted in Banking, Demarest, Carolyn E., Guaranty, Kings, Motion to Dismiss, Personal Jurisdiction, Real estate

In a January 6, 2016 Commercial Division decision by Justice Demarest, the court granted the defendants’ motion to dismiss pursuant to CPLR 3211(a)(4) in part, staying the action until the conclusion of a separate action brought in New Jersey.

Buyer Comes Up Short in Breach of Contract Action, Where Short Sale Approval by Mortgagee Was Condition Precedent to Sale of Property

Posted in Attorneys' Fees, Banking, Breach of Contract, Demarest, Carolyn E., Kings, Motion to Dismiss, Real estate

In a December 3, 2015 Commercial Division decision by Justice Demarest, the court dismissed a complaint in its entirety that alleged a breach of a contract for the sale of real property, and cancelled the corresponding notice of pendency filed against the subject property by the plaintiffs. 

Admissibility of Original Pleading as an Informal Judicial Admission Precludes Finding of Prejudice for Purposes of Denying Motion for Leave to Amend

Posted in Declaratory Judgment, Demarest, Carolyn E., Healthcare, Kings, Motion to Amend, Motion to Dismiss, Shareholder Dispute

In a July 21, 2015, Kings County Commercial Division decision by Justice Demarest, the court granted plaintiff’s cross-motion to amend his complaint under CPLR 3025 and to disqualify defendant’s counsel under Rule 1.9 of the Rules of Professional Conduct. 

Accountant Providing Non-Auditing Tax Services Still Has Professional and Fiduciary Duties to Inform Taxpayer of Questionable Financial Practices

Posted in Accounting, Banking, Breach of Contract, Breach of Fiduciary Duty, Demarest, Carolyn E., Fraud, Kings, Malpractice, Motion to Dismiss, Negligence

In a July 21, 2015, Kings County Commercial Division decision by Justice Demarest, the court denied in part and granted in part defendants’ motion to dismiss plaintiff’s amended complaint under CPLR 3211 (a) (1) and (7).

Note to Guarantor Defending against an Alleged Failure to Pay upon Default: Don’t Question the Authenticity of Your Signature and Also Admit You Signed the Guaranty in the Same Affirmation in Opposition

Posted in Arbitration, Attorneys' Fees, Breach of Contract, Demarest, Carolyn E., Discovery, Guaranty, Kings, Limited Liability Companies, Summary Judgment

In an April 15, 2015, Commercial Division decision by Justice Demarest, the court granted plaintiff-lender’s motion for summary judgment based on defendant-guarantor’s failure to repay a loan upon the borrower’s default under a related promissory note.

Documentary Evidence Establishing Plaintiff-Shareholder Sold Interests in Plaintiff-Corporation Pre-Suit Bars Derivative Action

Posted in Demarest, Carolyn E., Kings, Motion to Dismiss, Preliminary Injunction, Real estate

In an April 29, 2015, Commercial Division decision by Justice Demarest, the court denied the plaintiff’s motion for a restraining order and preliminary injunction, vacated the previously ordered temporary restraining order, and granted the defendant’s motion to dismiss.

Class Certification Granted on Lien Law Article 3-A Trust Fund Diversion Claims

Posted in Class Action, Construction, Demarest, Carolyn E., Kings

In a February 24, 2015, Commercial Division decision by Justice Demarest, the court granted the plaintiff’s motion for class certification of two of its claims. This case arose out of a development project for which the defendant North 7-8 Investors, LLC (“North 7-8) was the owner and developer of the project and the defendant Britt… Continue Reading

Court Dismissed Mortgage Foreclosure Action Where Tenants of Residential Real Property Were Not Provided Notice

Posted in Demarest, Carolyn E., Kings, Motion to Dismiss, Real estate

In a February 5, 2015, Commercial Division decision by Justice Demarest, the court dismissed an action to foreclose a mortgage on real property because plaintiff failed to provide the notice pursuant to Real Property Actions and Proceedings Law (“RPAPL”) § 1303(1)(b). RPAPL § 1303 provides that “the foreclosing party in a mortgage foreclosure action, involving… Continue Reading

Untwisted Pretzel: Pro Se Plaintiff’s Multiple Prior Actions Related to Breach of Licensing Agreement for Development of “Different Twist Pretzel Stores” deemed Res Judicata

Posted in Breach of Contract, Demarest, Carolyn E., Estoppel, Kings, Motion to Dismiss, Retail

In a December 5, 2014, Commercial Division decision by Justice Demarest, the court granted the defendants’ motions for summary judgment, dismissing the case. The action arose out of a licensing agreement (the “Agreement”) through which the pro se plaintiff (“Rose”) was to obtain the master rights to develop and sell licenses and pretzel products through… Continue Reading

Court Grant’s Plaintiff’s Motion for Reargument Based on Erroneous Application of Incorporation by Reference Doctrine Resulting in Dismissal due to Statute of Limitations

Posted in CPLR 2221, Demarest, Carolyn E., Kings, Real estate

In a January 23, 2015, decision by Justice Demarest, the court granted the plaintiff’s (“Zucker”) motion, pursuant to CPLR 2221(d)(2), to reargue with respect to that part of the court’s prior decision which dismissed the plaintiff’s breach of contract and unjust enrichment claims.