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When an out-of-state corporate plaintiff wishes to bring a lawsuit against a New York-based defendant, a litigator would likely recommend bringing that lawsuit in New York to secure jurisdiction over the defendant. Before pulling the trigger, however, it is critical to confirm the plaintiff’s standing to seek relief from New […] The post The Courthouse Doors Are Always Open (Sort of): Moving to Dismiss Under NY Business Corporation Law § 1312 appeared first on Yankwitt
Just like fleeing from a burning building, out-of-state defendants sued in federal court should have multiple case exit strategies. While defense counsel should start with a motion to dismiss for lack of jurisdiction or failure to state a claim – having a backup plan is always prudent. Enter the motion […] The post The Exits Are Here, Here and Here: Motions to Transfer Venue in Federal Court appeared first on Yankwitt LLP.…
One of the most frustrating experiences for a defense attorney in federal court is to have a document that could demolish a complaint, but he/she is precluded from using it on a motion to dismiss. In New York state court, where the Civil Practice Law and Rules (CPLR) offers more […] The post The Contours of CPLR 3211(a)(1): What Constitutes Documentary Evidence? appeared first on Yankwitt LLP.…
Following a public comment period, the Chief Administrative Judge of the New York courts recently issued Administrative Order 270/2020 implementing substantial changes to general civil practice in New York Supreme Court. The rule changes go into effect on February 1, 2021. The new rules, almost 30 in total, adopt many […] The post NY State Implements Major Changes to the Uniform Rules for the Supreme and County Courts appeared first on Yankwitt LLP.…
Judge Karas Grants Defendants’ Motion to Dismiss Complaint Alleging Due Process Violations under the Fourteenth Amendment In Twardosz v. Yonkers Public School District, No. 19-CV-6138 (KMK), 2020 WL 6135114 (S.D.N.Y. Oct. 19, 2020), Judge Kenneth Karas dismissed the plaintiff’s complaint alleging due process violations under the Fourteenth Amendment, as well […] The post Westchester Quarterly Roundup: Notable Decisions of the Westchester County Federal and State Courts appeared first on Yankwitt LLP.…
New York state practitioners often view motions for default judgment against non-appearing defendants as a slam dunk. After all, the Second Department standard for granting default judgment is extremely liberal – a “defaulting defendant admits all traversable allegations in the complaint, including the basic issue of liability, and [] the […] The post When Is a Default Judgment Not a Default Judgment? appeared first on Yankwitt LLP.…
Clients are often surprised to learn that in New York if one receives a bill or invoice of any kind and fails to challenge it within a reasonable period of time, the client may be liable for the outstanding balance under an “account stated” theory. Traditionally, this kind of claim […] The post The Proof is in the Delivery: Account Stated Claims in the Electronic Age appeared first on Yankwitt LLP.…
Lawyers often rely on forms and templates to speed up the time spent drafting legal documents. While using forms can save clients’ money and likely ensure the language used has been vetted and approved by the firm and its colleagues, it also can create a false sense of security that […] The post Beware of Boilerplate Language: The Impact of Expansive Release Terms appeared first on Yankwitt LLP.…
Contractual forum selection clauses are a must-have in any litigation-focused review. In drafting these clauses, clients are well advised to select dispute resolution forums that are both convenient and well suited for the level of complexity attendant to their contracts and business relationships. A key question to consider when deciding […] The post The Devil is in the Details in Forum Selection Clauses appeared first on Yankwitt LLP.…
Sellers of goods often will include an exclusive remedy provision in their purchase agreements, which (1) limits the seller’s liability to a buyer to either repair or replace the purchased goods, or refund the purchase price, and (2) waives all other available remedies. When a dispute between a seller and […] The post Contractual Limitations on Remedies Will Be Enforced on Motions to Dismiss, Unless the Seller Does Not Provide a Remedy at All appeared…