In a January 29, 2013, decision by Justice Whelan, the court denied plaintiff and counterclaim-defendants’ motion to dismiss defendant’s counterclaims. Plaintiff-tennis club sued defendant-financing company for breach of contract in connection with an equipment lease and purchase agreement. Defendant countersued, asserting its own breach of contract claims against both plaintiff and additional counterclaim-defendants who served… Continue Reading
Category Archives: Failure to State a Claim
Subscribe to Failure to State a Claim RSS FeedJudicial-Proceedings Privilege Inapplicable in the Face of Allegations that Prior Litigation Was Commenced to Harrass and Disparage: Hadar v Pierce
Posted in Aiding and Abetting, Breach of Fiduciary Duty, Civil Conspiracy, CPLR 3211, Defamation, Failure to State a Claim, Industry: real estate, Judicial Proceedings Privilege, Justice Bransten, Eileen, Legal Malpractice, Motion to Dismiss, New York, Res Judicata, Tortious Interference with Business RelationsIn a January 4, 2013, decision by Justice Bransten, the court denied defendants’ motion to dismiss under CPLR 3211 [a] [7] plaintiff’s causes of action for defamation, legal malpractice, breach of fiduciary duty, malicious prosecution, civil conspiracy, and other business torts. Plaintiff-real estate developer sued his father and his father’s lawyers, alleging that they undertook… Continue Reading
RICO Claims Dismissed for Failure to Establish a Racketeering Enterprise: Daskal v Tyrnauer
Posted in Debtor-Creditor, Failure to State a Claim, Fraud, Industry: real estate, Justice Demarest, Carolyn E., Kings, RICOIn an October 22nd decision by Justice Demarest, the court granted the defendants’ motions to dismiss the complaint. Daskal brought the action individually and on behalf of three corporate entities, including Greene LLC, alleging that he was defrauded by the defendants in the diversion of Green LLC’s assets. Daskal formed Greene LLC as vehicle through… Continue Reading
Court Upholds Fraud Claims Based on Allegations of Opinions Expressed by Bank to Induce Plaintiff to Purchase Toxic Securities in Order to Avoid Losses: Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc.
Posted in Arbitration, Breach of Contract, Breach of Implied Covenant of Good Faith and Fair dealing, CPLR 301, CPLR 3211, Failure to State a Claim, Forum non Conveniens, Fraud, Good faith and fair dealing, Industry: banking, Industry: financial services, Justice Kornreich, Shirley Werner, Motion to Compel Arbitration, Motion to Dismiss, Motion to Stay Discovery, Negligent Misrepresentation, New York, Personal Jurisdiction, Rescission, Unjust EnrichmentIn an October 18, 2012, decision by Justice Kornreich, the court granted in part and denied in part defendant’s motions to compel arbitration and to dismiss the complaint. Plaintiff-mutual fund sued defendant-investment bank in connection with the purchase of a certain mortgage-backed securities. Plaintiff alleged that it was induced to purchase the products through false… Continue Reading
Plain Language of Excess D&O Policy Required Underlying Insurers to Pay Limits on Their Own Policies Before Attachment: Forest Labs., Inc. v Arch Ins. Co.
Posted in Ambiguity, Breach of Contract, Contract Interpretation, CPLR 3211, Documentary Evidence, Failure to State a Claim, Fraud, Industry: insurance, Justice Schweitzer, Melvin L., New YorkIn a September 12, 2012, decision by Justice Schweitzer, the court granted defendant’s motion to dismiss plaintiff’s complaint. Plaintiff-insured, after settling a securities fraud case for $65 million, sought to recover “unpaid extra claims and defense costs” from defendant-excess insurer, which provided the last $10 million layer of a $70 million tower of directors and… Continue Reading
Investment Advisor’s Desire to Earn Additional Fees Does Not Constitute an Intent to Defraud: SSL II, LLC v John Hancock Life Ins. Co.
Posted in Aiding and Abetting, Breach of Fiduciary Duty, CPLR 3016, CPLR 3211, Failure to Plead with Particularity, Failure to State a Claim, Fraud, General Business Law 349, Industry: financial services, Justice Kornreich, Shirley Werner, Motion to Dismiss, Negligent Misrepresentation, New York, Scienter, Standing, Unjust EnrichmentIn a September 28, 2012, decision by Justice Kornreich, the court granted defendants’ motions to dismiss plaintiff’s complaint in its entirety. Plaintiff, owner of several variable life insurance policies ultimately invested with Bernard Madoff, sued the insurance companies, the investment advisor, and the funds in which the premiums were invested. Plaintiff asserted a number of… Continue Reading
Complaint for Antitrust Violations related to Airline Special Facility Bonds Dismissed for Failure to State a Cause of Action: Williams v Citigroup, Inc.
Posted in CPLR 3211, Failure to State a Claim, Industry: legal, Justice Fried, Bernard J., Motion to Dismiss, New York, The Donnelly Act, Tortious Interference With Contract, Tortious Interference with Economic RelationsIn a June 19, 2012 decision by Justice Fried, the court granted the defendants’ motion to dismiss the complaint for failure to state a cause of action. The plaintiff, an attorney specializing in structured finance, developed and patented a structure for issuing airline special facility municipal bonds, which she marketed to the defendant-underwriters and which… Continue Reading
Failure to Serve Notice of Default Not a Proper Ground for Dismissal under CPLR 3211: Old Rock Assoc. v BDG Yapshank, LLC
Posted in Commercial Real Property, Condition Precedent, CPLR 3211, CPLR 3215, Deficiency Judgment, Documentary Evidence, Failure to State a Claim, Industry: real estate, Justice Whelan, Thomas, Mortgages, SuffolkIn a September 16, 2011, decision by Justice Whelan, the court denied in part and granted in part defendant’s motion to dismiss plaintiff’s mortgage-foreclosure action and demand for a deficiency judgment in connection with the purchase of certain commercial real property. Defendant argued that plaintiff failed to comply with the default provisions of the mortgage, which… Continue Reading
Purchase Price for Interests in Company Subject to Valuation Is Sufficiently Certain to Form Enforceable Contract: Nigro v Owen Logistics LLC
Posted in Agreement to Agree, Breach of Contract, Conversion, CPLR 3016, CPLR 3211, Documentary Evidence, Duplicative Cause of Action, Failure to State a Claim, Fraud, Industry: Transportation, Justice Bucaria, Stephen A., Misrepresentation, Motion to Dismiss, Nassau, Specific Performance, Unjust EnrichmentIn a February 14, 2011, decision by Justice Bucaria, the court granted in part and denied in part defendants’ motion to dismiss. Plaintiff-buyer sued defendant-LLC members for breach of contract and specific performance in connection with the purchase of their interests in two logistics companies. Defendants moved to dismiss based on documentary evidence and failure to state… Continue Reading
Evidence of Corporate Informalities and Fraudulent Transfer Bars Summary Judgment on Shareholder’s Entitlement to Stock Certificate and Transferability of Shares: Tulino v Tulino
Posted in BCL 508, Breach of Fiduciary Duty, Corporate Formalities, CPLR 3025, CPLR 3124, CPLR 3211, CPLR 3212, Derivative Actions, Discovery, Failure to State a Claim, Industry: real estate, Justice Bucaria, Stephen A., Lack of Capacity, Motion for Leave to Amend Pleadings, Motion to Compel Discovery, Motion to Dismiss, Nassau, Restraint on Alienation, Shareholder Dispute, Summary JudgmentIn a December 2, 2010, decision by Justice Bucaria, the court denied defendant-50% shareholder’s motion to dismiss but granted his motion to compel discovery. The court also denied plaintiff-50% shareholder’s motion for summary judgment but granted him leave to amend the complaint. Plaintiff entered into an agreement with a third party to sell his interest in defendant-corporation,… Continue Reading
Action Against Competitor Dismissed for Failure to Adequately Plead Business Tort Elements: Wayne Thomas Salon, Inc. v Moser
Posted in Business tort, CPLR 3211, Failure to Plead with Particularity, Failure to State a Claim, Industry: beauty, Interference with Prospective Advantage, Justice Kapnick, Barbara R., Motion to Dismiss, New York, Non-compete, Non-solicitation, Tortious Interference with Business Relations, Unfair Competition, Unjust EnrichmentIn an October 12, 2010, decision by Justice Kapnick in connection with an action between two hair salons in which plaintiff alleged various business torts relative to the resignation of a stylist from plaintiff’s salon and the subsequent hiring of that same stylist by defendant’s salon, and on defendant’s motion to dismiss for failure to… Continue Reading