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Commercial Court Motion to Dismiss

Patterson Belknap Webb & Tyler LLP

Commercial Division Decision Provides Example of a Pre-Answer Motion to Dismiss Based on Documentary Evidence

On October 11, 2022, the Commercial Division Justice for Bronx County, Justice Gomez, issued a decision on a motion to dismiss in Chen v Fox Rehab. Servs., P.C., 175 N.Y.S.3d 713, 2022 NY Slip Op 50986(U) (Sup. Ct. Bronx...more

Patterson Belknap Webb & Tyler LLP

Recent Commercial Division Decision Provides a Primer to the Myriad of Potential Issues Associated with Collecting A Judgment...

On November 10, 2021, a Commercial Division Court issued a decision on a motion to dismiss the claims brought by Wilmington Trust Company (“WTC”) against a wide range of parties that WTC alleged to be alter egos of an...more

Farrell Fritz, P.C.

All You Need Is Love… And An Articulable Nexus Of Fraud

Farrell Fritz, P.C. on

What can you do when the parties you are suing are effectively judgment-proof? Oftentimes, plaintiffs will try to go after a defendant’s family member or related entity. ...more

Farrell Fritz, P.C.

Oops! They Did it Again: New York Courts Continue to Dismiss Lawsuits Based on Contractual Disclaimers

Farrell Fritz, P.C. on

A few weeks ago, I blogged about the Arco Acquisitions, LLC, v Tiffany Plaza LLC et al. decision, in which Suffolk County Commercial Division Justice Elizabeth Hazlitt Emerson held that the plaintiff’s fraud claims were...more

Sheppard Mullin Richter & Hampton LLP

Commercial Division Limits the Reach of New York’s Long-Arm Statute

In Black Diamond Aviation Grp. LLC v. Spirit Avionics, Ltd., 70 Misc. 3d 823 (Sup. Ct. Suffolk Cnty. 2020), Justice James Hudson of the Suffolk County Commercial Division limited the reach of New York’s long-arm statute, CPLR...more

Farrell Fritz, P.C.

Commercial Division Denies Pfizer’s Motion To Dismiss, Holds Allergan’s Claims for Defense Costs Are Ripe

Farrell Fritz, P.C. on

It’s back to business as usual for Commercial Division Justice Andrew Borrok, who recently issued a slew of decisions contributing to New York’s robust Commercial Division jurisprudence....more

Farrell Fritz, P.C.

Affirmatively Plead Your Defenses, or Risk “Waiving” Them Goodbye

Farrell Fritz, P.C. on

Many litigants are familiar with the well-settled rule that an affirmative defense will be waived if it is not included in a CPLR 3211(a) motion to dismiss or in the answer (see CPLR 3211[e]).   And so, lawyers tasked with...more

Farrell Fritz, P.C.

Economic Justification for the Win – Defeating a Tortious Interference Claim

Farrell Fritz, P.C. on

Consider this situation: You are a shareholder of a company who is about to enter into a contract with a third party. But you know that this is a bad deal that will negatively impact the company....more

Jones Day

New York Commercial Division Imposes PSLRA Discovery Stay in Securities Act Class Action

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A recent decision by the New York Commercial Division held that the Private Securities Litigation Reform Act's automatic stay of discovery pending a motion to dismiss applies to Securities Act claims pursued in state court,...more

Sheppard Mullin Richter & Hampton LLP

Commercial Division Justices Provide Dueling Approaches to Discovery Stays in State Court Securities Litigation

In In re Everquote, Inc. Securities Litigation, 2019 N.Y. Slip Op. 29242, No. 651177/2019, 2019 WL 3686065 (Sup. Ct. N.Y. Cnty. Aug. 7, 2019), Justice Andrew Borrok of the New York County Commercial Division stayed discovery...more

WilmerHale

New York Commercial Division Justice Holds PSLRA Discovery Stay Applies To State Court Securities Act Class Actions

WilmerHale on

On August 6, 2019, New York Commercial Division Justice Andrew Borrok held that the discovery stay under the Private Securities Litigation Reform Act (PSLRA) applies to Securities Act claims filed in state court, and entered...more

Farrell Fritz, P.C.

Shareholders Beware: Serve Pre-Litigation Demands or Be Prepared to Plead Demand Futility with Particularity

Farrell Fritz, P.C. on

In a recent case, Gammel v Immelt (2019 NY Slip Op 32005[U]), shareholders of General Electric Company (GE), brought a derivative shareholder action against the members of GE’s board of directors and various committees...more

Farrell Fritz, P.C.

Dismissed: The Tragic, True Story of Direct and Derivative Claims Jumbled Together Beyond Recognition

Farrell Fritz, P.C. on

Much has been written about the pleading requirements unique to shareholder derivative lawsuits. For example, a derivative complaint must allege the plaintiff’s standing as a shareholder at all relevant times. Demand upon the...more

Farrell Fritz, P.C.

Judge Emerson Says “Thank you, Next” to Plaintiff’s Weak Arguments Relating to Dismissal of Forum-Selection Clause

Farrell Fritz, P.C. on

Recently, Suffolk County Commercial Division Justice Emerson weighed in on the proper procedure for making a motion to dismiss based on a forum-selection clause as well as what type of harm a party needed to show in order to...more

Farrell Fritz, P.C.

Is the Defense of “Release” Documentary Evidence Under 3211(a)(1) or an Affirmative Defense Under (a)(5)(or does it matter)?

Farrell Fritz, P.C. on

In Miller v. Brunner, the Appellate Division, Second Department spoke clearly (again) about how to move to dismiss on the defense of release. In a case arising out of the Commercial Division in Kings County (Hon. Sylvia G....more

Farrell Fritz, P.C.

Personal Jurisdiction Over Japanese Airplane Entities Does Not Fly in New York County

Farrell Fritz, P.C. on

In a recent decision, Justice Scarpulla of the New York County Commercial Division declined to exercise personal jurisdiction over several Japanese entities, and even imposed sanctions on the plaintiff for attempting to...more

Patterson Belknap Webb & Tyler LLP

Commercial Division Finds Jurisdiction over Foreign Defendant on an Alter Ego Theory in Estate’s Action to Recover Painting...

In a decision issued last month in Gowen v. Helly Nahmad Gallery, Inc., No. 650646/2014, 2018 NY Slip Op 28142, 2018 BL 164601, Commercial Division Justice Eileen Bransten found personal jurisdiction over foreign defendants...more

Farrell Fritz, P.C.

Treasury Secretary Escapes Fraud Claims

Farrell Fritz, P.C. on

On June 5, 2018, in RKA Film Financing, LLC v. Kavanaugh et al., the First Department unanimously affirmed the Supreme Court, New York County’s decision absolving the United States Secretary of the Treasury, Steven Mnuchin,...more

Farrell Fritz, P.C.

Action to Recover Amadeo Modigliani Painting Stolen by Nazis Survives Dismissal Due in Part to Alter Ego Finding

Farrell Fritz, P.C. on

Over eighty years after the end of World War II, crimes committed by the Nazis continue to be redressed, including in our very own Commercial Division. ...more

Farrell Fritz, P.C.

Shareholder Oppression Requires More Than Denial of Access to Company Information

Farrell Fritz, P.C. on

The family-owned business at the center of Vaccari v Vaccari, 2018 NY Slip Op 30546(U) [Sup Ct NY County Mar. 28, 2018], decided last month by veteran Manhattan Commercial Division Justice Eileen Bransten, is a classic...more

Farrell Fritz, P.C.

When Does Intentional Wrongdoing Render a “Limitation of Liability” Clause Unenforceable?

Farrell Fritz, P.C. on

That was the issue presented to the Appellate Division, First Department in Electron Trading, LLC v. Morgan Stanley & Co. LLC, which was an appeal from the grant of defendant’s motion to dismiss a contractual claim seeking...more

Farrell Fritz, P.C.

Defamation Claims Against Gemological Institute Doomed: Qualified Privilege Shield Is Stronger Than A Diamond

Farrell Fritz, P.C. on

“Diamonds are nothing more than chunks of coal that stuck to their jobs,” said Malcom Forbes. An industry that generates over $13 billion annually, diamonds are considered one of the world’s major natural resources. ...more

Patterson Belknap Webb & Tyler LLP

The First and Second Departments Split on What is Considered “Documentary Evidence” on a Motion to Dismiss Under CPLR 3211(a)(1)

CPLR 3211(a)(1) allows a defendant to “move for judgment dismissing one or more causes of action asserted against him on the ground that . . . a defense is founded upon documentary evidence.” The CPLR does not define the...more

Farrell Fritz, P.C.

Pleading Equitable vs. Contractual Indemnification

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Can a claim for equitable or common-law indemnification co-exist with a claim for express or contractual indemnification? In Live Invest, Inc. v. Morgan Justice Emerson says “no”, when the claim seeks to recover for the...more

Patterson Belknap Webb & Tyler LLP

First Department Allows $45 Million Fraud Claim to Proceed Against Patriarch Partners

In Norddeutsche Landesbank Girozentrale v. Tilton, No. 651695/15, 2017 BL 55790 (App Div, 1st Dep’t Feb. 23, 2017), a divided panel of the Appellate Division, First Department, affirmed a Commercial Division order that denied...more

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