Untimely Filing Of Motion To Dismiss Does Not Warrant Automatic Dismissal Where Motion Is Meritorious And Opposing Party Will Not Be Prejudiced

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In Brown, et al. v. Noble, Inc., et al., Index No. 600876/2010 (Sup. Ct., NY County, Dec. 2, 2010) (“Brown v. Noble”), Justice Bernard Fried granted defendant Thomas Caruso’s (“Caruso”) motion to dismiss plaintiffs Robert Brown and RB Group LLC’s (“Plaintiffs”) complaint, even though the Motion was filed approximately 1 week late.

In June 2009, in connection with a loan, defendant Noble, Inc. (“Noble”), executed a promissory note (the “Note”) in favor of plaintiff Robert Brown (“Brown”). Caruso was the signatory on the Note as the President of Noble, and the Note required Noble to make monthly interest payments to Brown from July 2009 through June 2010. In July 2009, Brown also entered into an accounts receivable purchase agreement (the “Purchase Agreement”) with Noble, which Caruso also signed as the President of Noble. While Caruso signed both the Note and the Purchase Agreement on behalf of Noble, neither the Note nor the Purchase Agreement imposed any obligations on Caruso. This action arose out of Noble’s alleged failure to make the requisite payments under the Note and the Purchase Agreement.

On April 7, 2010, Plaintiffs served their complaint upon defendants Noble and Caruso, asserting six causes of action: (i) breach of contract, (ii) unjust enrichment, (iii) breach of implied covenant of good faith and fair dealing, (iv) promissory estoppel, (v) fraudulent misrepresentation, and (vi) indemnity. The parties stipulated that defendants’ time to respond to the complaint was extended until May 31, 2010 which, by virtue of Memorial Day, meant that defendants’ response was due on June 1, 2010. However, Caruso did not serve the Motion until June 7, 2010, thereby making the Motion untimely.

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