section 3211(a) breach of contract claim in New York

2024Defendants now move to dismiss the breach of contract claim under CPLR 3211(a)(1) and both causes of action, defamation per se and breach of contract, under CPLR 3211(a)(7). "[T]he standard to be applied on a motion [of this type] is both familiar and well settled — '[the Court] must afford the complaint a liberal construction, accept as true the allegations contained therein, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory". " ( Rodriguez v Jacoby & Meyers, LLP , 126 AD3d 1183 , 1185 [3d

2024Defendants now move to dismiss the breach of contract claim under CPLR 3211(a)(1) and both causes of action, defamation per se and breach of contract, under CPLR 3211(a)(7). "[T]he standard to be applied on a motion [of this type] is both familiar and well settled — '[the Court] must afford the complaint a liberal construction, accept as true the allegations contained therein, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory". " ( Rodriguez v Jacoby & Meyers, LLP , 126 AD3d 1183 , 1185 [3d

2024Defamation per se "The elements of a cause of action sounding in defamation [are] as follows: (1) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (2) published without privilege or authorization to a third party, (3) amounting to fault as judged by, at a minimum, a negligence standard, and (4) either causing special harm or constituting defamation per se." ( Levy v. Nissani , 179 AD3d 656 , 657—658, [2d Dept 2020]) "[O]n a motion to dismiss pursuant to CPLR 3211(a) (7) [the Court] consider[s] only 'whether any reading of the complain

2024Defamation per se "The elements of a cause of action sounding in defamation [are] as follows: (1) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (2) published without privilege or authorization to a third party, (3) amounting to fault as judged by, at a minimum, a negligence standard, and (4) either causing special harm or constituting defamation per se." ( Levy v. Nissani , 179 AD3d 656 , 657—658, [2d Dept 2020]) "[O]n a motion to dismiss pursuant to CPLR 3211(a) (7) [the Court] consider[s] only 'whether any reading of the complain

2024Defendants now move to dismiss the breach of contract claim under CPLR 3211(a)(1) and both causes of action, defamation per se and breach of contract, under CPLR 3211(a)(7). "[T]he standard to be applied on a motion [of this type] is both familiar and well settled — '[the Court] must afford the complaint a liberal construction, accept as true the allegations contained therein, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory". " ( Rodriguez v Jacoby & Meyers, LLP , 126 AD3d 1183 , 1185 [3d

2024Defendants now move to dismiss the breach of contract claim under CPLR 3211(a)(1) and both causes of action, defamation per se and breach of contract, under CPLR 3211(a)(7). "[T]he standard to be applied on a motion [of this type] is both familiar and well settled — '[the Court] must afford the complaint a liberal construction, accept as true the allegations contained therein, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory". " ( Rodriguez v Jacoby & Meyers, LLP , 126 AD3d 1183 , 1185 [3d

2014Although General Obligations Law § 5-701 (a) (1) is unavailing, because it was possible that the contemplated services could be fully performed within one year, we conclude that Helix may raise General Obligations Law § 5-701 (a) (10) for the first time on appeal, since it “raises a legal argument which appeared upon the face of the record and which could not have been avoided” if raised initially (Vanship Holdings Ltd. v Energy Infrastructure Acquisition Corp., 65 AD3d 405 , 408 [1st Dept 2009] [internal quotation marks omitted]; see e.g.

2014Although General Obligations Law § 5-701 (a) (1) is unavailing, because it was possible that the contemplated services could be fully performed within one year, we conclude that Helix may raise General Obligations Law § 5-701 (a) (10) for the first time on appeal, since it “raises a legal argument which appeared upon the face of the record and which could not have been avoided” if raised initially (Vanship Holdings Ltd. v Energy Infrastructure Acquisition Corp., 65 AD3d 405 , 408 [1st Dept 2009] [internal quotation marks omitted]; see e.g.

2026Corp., 257 AD2d 76 [1st Dept 1999] citing Guggenheimer v Ginzburg, 43 NY2d 268,275 [1977] [when considering evidentiary material under CPLR [a] [7] , "the criteria is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one, and unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it ... dismissal should not eventuate].) Breach of Contract Claim Defendants appear to move for dismissal of plaintiffs breach of contract claim under CPL

2025The court correctly denied defendant's motion to dismiss plaintiff's claim for anticipatory breach of the parties' management agreement, as the claim adequately pleaded an "express and absolute refusal to perform," which is not utterly refuted by the parties' correspondence ( Audthan LLC v Nick & Duke, LLC , 42 NY3d 292 , 303 [2024] [internal quotation marks omitted]).

2013In Plaza, the First Department held that a similar, internally inconsistent provision in a real estate contract did not warrant dismissal of breach of contract claims under CPLR 3211 (a) (1). {Plaza, 98 AD3d at 100-101 .) Accordingly, it is not appropriate to dismiss plaintiff’s breach of contract claims at this stage.