Appellate Division of the Supreme Court of New York, First Department · Contracts
ContractsContractsmotion to dismissfirst cause of actionCohen v. CohenSabo v. Delmanappellate reversal
Facts
The opinion provides almost no underlying factual detail about the parties' dispute. It indicates only that the complaint contained a first cause of action and that the opposing party moved to dismiss it. The lower court apparently granted dismissal. On appeal, the court considered whether that dismissal should stand in light of Sabo v. Delman and Cohen v. Cohen.
Issue
Whether the first cause of action in the complaint should be dismissed, and specifically whether the court should extend the application of Cohen v. Cohen to support dismissal.
Rule
The court will not extend the application of Cohen v. Cohen to dismiss the first cause of action, and under Sabo v. Delman the motion to dismiss that cause of action should be denied.
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One of 10 multiple-choice questions for this case. Pick an answer to see why.
In Manhattan, Lena Ortiz sued Harbor Stone Development, alleging several contract-related claims. The trial judge dismissed the first cause of action solely because a prior appellate case had been applied beyond its original setting, even though Lena argued a different controlling decision required that claim to survive the pleading stage.
If the appellate court follows the majority opinion's approach, what is the most likely result?
Explanation. The majority opinion establishes a narrow rule: where dismissal of the first cause of action depends on extending Cohen v. Cohen, that extension should be rejected, and under Sabo v. Delman the motion to dismiss that cause of action should be denied. The proper appellate disposition is reversal on the law, not affirmance or a fact-finding remand. (Derived from Danann Realty Corp. v. Harris (n.d.).)