FAILED TO SUBMIT ANY DOCUMENTARY EVIDENCE WITH ITS MOVING PAPERS
When CMD Co. tried to exercise its stock purchase rights, as reserved by certain long-term leases for some professional apartments, FHO Corp allegedly declined to honor the terms of the parties’ agreements.
After a lawsuit was filed, FHO moved to dismiss the case based on the documents – claiming that the latter refuted the allegations and that CMD thus “failed to state a cause of action” or claim – but the Queens County Supreme Court ended up denying that request.
On its review, the Appellate Division, Second Department, thought that FHO had made a critical error. While FHO maintained that the documents didn’t support the claims being asserted, it inexplicably “failed to submit the leases, or any other documentary evidence, with its moving papers.”
And while FHO impermissibly attempted to introduce one of the leases on reply, the AD2 noted that even if it had been considered, that document failed to “refute the factual allegations in the complaint,” nor did it “conclusively establish a defense to the causes of action as a matter of law.”
Given the low review standard on a motion to dismiss – where the pleading is given “the benefit of every favorable inference” – the AD2 thought the underlying determination was appropriately premised and left the outcome undisturbed.
Think they need a new lease on life there?
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DECISION