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Nyru, Inc v. Forge Restaurant

New York Supreme and/or Appellate Courts Appellate Division, First Department


February 14, 2012

NYRU, INC.,
PLAINTIFF-APPELLANT-RESPONDENT,
v.
FORGE RESTAURANT, LLC,
DEFENDANT-RESPONDENT-APPELLANT.

NYRU, Inc. v Forge Rest., LLC

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 14, 2012

Mazzarelli, J.P., Saxe, Moskowitz, Freedman, Manzanet-Daniels, JJ.

Order, Supreme Court, New York County (Louis B. York, J.), entered April 15, 2011, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on the second cause of action, granted plaintiff's motion for leave to amend the complaint nunc pro tunc to correct defendant's name, and denied defendant's cross motion to dismiss the second cause of action, unanimously affirmed, with costs.

Defendant waived the defense of lack of personal jurisdiction by failing to plead it in its answer and by failing to move to dismiss the complaint on that ground within 60 days after serving its answer (see CPLR 3211[a][8], [e]; Wiebusch v Bethany Mem. Reform Church, 9 AD3d 315 [2004]). The motion court properly granted plaintiff leave to amend the complaint to correct defendant's name, since process was served on an employee of defendant, defendant participated in discovery, and no prejudice to defendant from the amendment was demonstrated (see CPLR 305[c]; Rivera v Beer Garden, Inc., 51 AD3d 479 [2008]; Rodriguez v Dixie N.Y.C., Inc., 26 AD3d 199 [2006]).

Written correspondence between the parties (signed by the party to be charged), payments made by defendant that are difficult to explain except by reference to the terms of the disputed consulting agreement, and defendant's ledgers showing monthly payments made, present issues of fact whether the parties entered into a consulting agreement (see Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397 [1977]) and whether the agreement was removed from the operation of the Statute of Frauds (see General Obligations Law §§ 5-701[a][1]; 5-703[2]; Crabtree v Elizabeth Arden Sales Corp., 305 NY 48, 55 [1953]; Steele v Delverde S.R.L., 242 AD2d 414, 414 [1997]).

We have considered the parties' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 14, 2012

CLERK

20120214

© 1992-2012 VersusLaw Inc.



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