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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: Motion to Dismiss

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Statute of Frauds is Not a Bar to Russian Oligarch’s Claims Against Fellow Russian Billionaire Investors Over Breach of Joint Venture Agreement

Posted in Arbitration, Breach of Contract, Breach of Fiduciary Duty, Fraud, Motion to Dismiss, New York, Preliminary Injunction, Scarpulla, Saliann, Statute of Limitations

In a December 2, 2015 Commercial Division decision by Justice Scarpulla, the court consolidated and decided the defendants’ motion to dismiss the amended complaint and the plaintiff’s motion seeking a preliminary injunction to restrain the defendants from pursuing arbitration in London and from commencing any other foreign proceeding.

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. 

Court Finds Stock-Option Agreement Unenforceable, and Covenant-Not-to-Compete Unreasonable

Posted in Breach of Contract, Emerson, Elizabeth, Manufacturing, Motion to Dismiss, Pharmaceutical, Preliminary Injunction, Suffolk

In a November 24, 2015, Commercial Division decision by Justice Emerson, the court granted the defendants’ motion to dismiss the plaintiff’s amended complaint, which contained causes of action against the individual defendants for breach of covenants not to compete, tortious interference with contract and unfair competition.

Statute of Limitations Not a Bar Where Constructive Trust Claim Based on 2012 Alleged Breach of Promise, Not Mid-90’s Acquisition of Subject Properties

Posted in 2d Dept, Motion to Dismiss

In a decision dated July 15, 2015, the Appellate Division, Second department reversed an order of Queens County Commercial Division Justice Hon. Orin R. Kitzes that granted the defendants’ motion to dismiss the plaintiff’s claim for the imposition of a constructive trust based on the statute of limitations.

All Causes of Action, Except for One, Survive Defendants’ Motion to Dismiss

Posted in 7th District, Breach of Contract, Financial services, Motion to Dismiss, Order to Show Cause, Preliminary Injunction, Rosenbaum, Matthew A., Tortious Interference with Business Relations, Unjust Enrichment

In a November 6, 2015 Steuben County Supreme Court decision by Justice Rosenbaum, the court denied defendants’ motion to dismiss plaintiff’s claims of tortious interference with contractual relations, tortious interference with business relations, and unfair competition, but granted defendants’ motion to dismiss with respect to plaintiff’s claim of unjust enrichment.

Suit Against Holder of Sole Master License to US Polo Association Apparel Dismissed based on Court’s Sua Sponte Finding that Plaintiff Lacked Standing

Posted in Breach of Contract, Motion to Dismiss, New York, Ramos, Charles E., Retail

In a November 6, 2015 Commercial Division decision by Justice Ramos, the court granted the motion of defendants Jordache Limited, Jordache Enterprises, Inc. and JRA Trademark Co. Ltd., (“JRA”) pursuant to CPLR 3211 (a) (7) and 3016 (b), dismissing the verified complaint of plaintiff H & M Trading Company LLC (“H & M”).

Second Department Reverses Supreme Court’s Denial of Defendants’ Motion to Dismiss, Finding That Plaintiff Failed to Comply With Court Directive

Posted in 2d Dept, Attorneys' Fees, Breach of Contract, Discovery, Motion to Dismiss, Negligence, Summary Judgment

In a decision dated November 12, 2015, the Appellate Division, Second Department reversed an order from the Queens County Supreme Court, which denied the defendants’ motion to dismiss the plaintiff’s complaint.

Tortious Interference with Contract Claims Dismissed in Part Because Enforcing Non-Compete Agreements of Disaster Recovery Workers in Aftermath of Hurricane Sandy is Against Public Policy

Posted in Albany, Breach of Contract, Construction, Motion to Dismiss, Platkin, Richard, Tortious Interference with Business Relations

In an October 2, 2015, Commercial Division decision by Justice Platkin, the court ruled on two defendants’ pre-answer motions to dismiss particular causes of action in the Complaint.

Court Dismisses Various State Law Claims Under Both Russian and New York Law, Also Dismisses for Lack of Personal Jurisdiction over Foreign Defendants

Posted in Bransten, Eileen, Breach of Fiduciary Duty, Conversion, Motion to Dismiss, New York, Personal Jurisdiction, Shareholder Dispute, Tortious Interference with Business Relations, Unjust Enrichment

In an August 25, 2015 Commercial Division decision by Justice Bransten, the court granted five motions to dismiss, dismissing a Complaint which alleged conspiracy to strip the plaintiff, Norex Petroleum Limited (“Norex”), a Cyprus corporation, of its controlling interest in a lucrative Russian oil company (“Yugraneft”). In this case, the court analyzed whether a federal… Continue Reading

Statute of Limitations Begins Tolling at Closing of Pooling and Servicing Agreement in Residential Mortgage Backed Securities Put-Back Action, Despite Different Accrual Provision in Parties’ Private Contract

Posted in Banking, Breach of Contract, Financial services, Kornreich, Shirley Werner, Motion to Dismiss, New York, Statute of Limitations

In a September 18, 2015, Commercial Division decision by Justice Kornreich, the court granted the defendants’ consolidated motions to dismiss a Complaint pursuant to CPLR 3211, based on the defense that Plaintiff’s put-back claims were time barred. 

Notifying Bondholders of a Bond Redemption is Not the Same As Actually Redeeming Bonds

Posted in Healthcare, Kornreich, Shirley Werner, Motion to Dismiss, New York

In an August 25, 2015 Commercial Division decision by Justice Kornreich, the court denied defendant Catholic Health East’s (“CHE’s”) motion to dismiss a cause of action for breach of contract, and granted plaintiffs Emmet & Co., Inc.’s and First Manhattan Co.’s, Individually, and on Behalf of a Class of Similarly Situated Persons (“Emmet’s”) partial summary… Continue Reading

Fair Market Value and Financial Analysis Reports Requested and Paid For by Third Party-Sellers, and Not Signed by Defendant, Do Not Give Rise to a Contract or Fiduciary Duty Between Plaintiff-Purchaser and Defendant-Business Appraiser

Posted in 7th District, Breach of Contract, Breach of Fiduciary Duty, Healthcare, Motion to Dismiss, Rosenbaum, Matthew A.

In an August 27, 2015 Commercial Division decision by Justice Rosenbaum, the court granted the defendants’ motion to dismiss the complaint based on the defenses of documentary evidence and failure to state a cause of action.

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. 

First Department Affirms Denial of Proskauer Rose’s Motion to Dismiss Malpractice Claim Arising From Allegedly Deficient Tax Advice

Posted in 1st Dept, Legal, Malpractice, Motion to Dismiss, Statute of Limitations

In a decision dated July 2, 2015, the Appellate Division, First Department affirmed an order from the New York County Commercial Division denying the defendant Proskauer Rose’s motion to dismiss the first cause of action, which alleged legal malpractice against the law firm.

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).