Monthly Archives: November 2013


We are all familiar with the real estate sobriquet “Location! Location! Location!”  In litigation the analogous “nom de guerre” is “Timing! Timing! Timing!”

Four recent cases illustrate how litigants can be trapped into timing conundrums that require judicial intervention and discretion to achieve extraction.

Genesis Merchant Partners, LP v. Gee, 2013 NY Slip Op 32328(U) (9/17/2013 Sup. Ct. N.Y. Co., Joan A. Madden, J.)

Genesis moved, pursuant to CPLR §3212 for summary judgment in lieu of complaint.  Gee defaulted and subsequently moved, by order to show cause, to vacate the default and dismiss the action.  The Court set forth the background:

Specifically, plaintiff filed the summons, notice of motion for summary judgment in lieu of complaint and supporting papers on or about May 22, 2013.  CPLR 3213 provides that the summons served with papers seeking summary judgment in lieu of complaint “shall require the defendants to submit answering papers within the time provided in the notice of motion.”  CPLR 3213 further provides that “[t]he minimum time such motion shall be noticed to be heard shall be as provided by subdivision (a) of rule 320 for making a notice of appearance, depending on the method of service.”  CPLR 320(a) requires an answer to be served within 30 days of completion of service.  Here, service was made on defendant per CPLR 308(2) which provides that services is complete 10 days after the filing of proof of service.

Continue reading

Part III: “One Size Does Not Fit All”: Recent Decisions Highlight Claims and Defenses By and Against Departing Employees

Part I posted July 3, 2013

Part II posted September 4, 2013

 Tribeca Technology Solutions, Inc. v. Goldberg, 2013 NY Slip Op 31313(U) [Sup. Ct. New York County, June 17, 2013, Singh, J.]

Tribeca arose over “a dispute over the right to manufacture, market and profit from sales of a product named the ‘Intelliseat’, an electronic toilet seat.”  The complaint asserted causes of action “for misappropriation, aiding and abetting breach of fiduciary duty, and conspiracy.”

Continue reading