Dismissal Motions

___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00730 [2nd Dept,. 2015]

There were two actions pending between the parties, and the question was whether the second action should be dismissed pursuant to CPLR 3211 (a)(4), on the grounds that the first action was already pending.
The plaintiff had been injured while working on the roof of a building owned by the defendants, and sued in Supreme Court, Suffolk County, alleging various Labor Law violations. The defendants included two LLCs which plaintiff alleged owned and maintained the building, the sole member of the LLCs, and the general contractor. Two days after the personal injury action was commenced, one of the LLCs transferred half of its assets to the other.
Two years later, while the action was in full swing, plaintiff commenced another action, in Supreme Court, Dutchess County, seeking to set the conveyance aside as fraudulent under the Debtor and Creditor Law. The defendants moved to dismiss the second action, on the grounds of the pendency of the first.

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Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc., 115 A.D.3d 128, 980 N.Y.S.2d 21 [1st Dept., 2014]
Liberty Affordable Hous., Inc. v Maple Ct. Apts., ___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00003 [4th Dept., 2015]
In these cases the First and Fourth Departments addressed whether or not the Court of Appeals intended, in Miglino v Bally Total Fitness of Greater N.Y., Inc., to change a long-standing construction of the role of evidence on a motion to dismiss for failure to state a cause of action. On such a motion, is the question limited to whether the pleading alleges a cause of action within its four corners, or can the movant submit evidentiary proof sufficient to show that something alleged to be a fact is not a fact at all? Read More

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A New York Civil Procedure Blog by David H. Rosen

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Two Actions Pending

Failure to State a Cause of Action – Use of Affidavits