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Solomon Capital, LLC v. Lion Biotechnologies, Inc.

Appellate Division of the Supreme Court of the State of New York
May 11, 2021
194 A.D.3d 502 (N.Y. App. Div. 2021)

Opinion

13802N Index No. 651881/16 Case No. 2021-00184

05-11-2021

SOLOMON CAPITAL, LLC et al., Plaintiffs–Respondents, v. LION BIOTECHNOLOGIES, INC., formerly known as Genesis Biopharma, Inc., Defendant–Appellant.

Harter Secrest & Emery LLP, Rochester (Jerauld E. Brydges of counsel), for appellant. Greenberg Traurig, LLP, New York (Daniel Friedman of counsel), for respondents.


Harter Secrest & Emery LLP, Rochester (Jerauld E. Brydges of counsel), for appellant.

Greenberg Traurig, LLP, New York (Daniel Friedman of counsel), for respondents.

Kern, J.P., Gonza´lez, Scarpulla, Mendez, JJ.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered January 5, 2021, which granted plaintiffs’ motion to reargue defendant's motion to dismiss the complaint for failure to prosecute, and, upon reargument, vacated the original order, unanimously affirmed, without costs.

The motion court properly granted reargument, having failed to consider the verified complaint submitted by plaintiffs in opposition to defendant's motion to dismiss the complaint pursuant to CPLR 3216 ( CPLR 2221[d] ).

Plaintiffs demonstrated a reasonable excuse for failing to file the note of issue timely through counsel's affidavit explaining that the lawyer in charge of the case had failed to file necessary papers, had been terminated from the firm, and had retained the entire case file (see generally Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 504, 655 N.Y.S.2d 848, 678 N.E.2d 460 [1997] ).

The verified complaint contains detailed allegations making out a meritorious cause of action, which satisfies the requirement of a showing of merit in opposition to the motion to dismiss ( Salch v. Paratore, 60 N.Y.2d 851, 852–853, 470 N.Y.S.2d 138, 458 N.E.2d 379 [1983] ).


Summaries of

Solomon Capital, LLC v. Lion Biotechnologies, Inc.

Appellate Division of the Supreme Court of the State of New York
May 11, 2021
194 A.D.3d 502 (N.Y. App. Div. 2021)
Case details for

Solomon Capital, LLC v. Lion Biotechnologies, Inc.

Case Details

Full title:Solomon Capital, LLC et al., Plaintiffs- Respondents, v. Lion…

Court:Appellate Division of the Supreme Court of the State of New York

Date published: May 11, 2021

Citations

194 A.D.3d 502 (N.Y. App. Div. 2021)
2021 N.Y. Slip Op. 3007
143 N.Y.S.3d 548

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