Solomon Capital, LLC v. Lion Biotechnologies, Inc.

2021 NY Slip Op 03007

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 2021
• Docket: Index No. 651881/16 Appeal No. 13802N Case No. 2021-00184
• Status: Published

Opinion

Solomon Capital, LLC v Lion Biotechnologies, Inc. (2021 NY Slip Op 03007)

Solomon Capital, LLC v Lion Biotechnologies, Inc.

2021 NY Slip Op 03007

Decided on May 11, 2021

Appellate Division, First Department

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 and Entered: May 11, 2021
Before: Kern, J.P., González, Scarpulla, Mendez, JJ.

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

[*1]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.

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 NY2d 499, 504 [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 NY2d 851, 852-853 [1983]).

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

ENTERED: May 11, 2021