CDR Creances S.A.S. v. Cohen

CourtNew York Supreme Court Appellate Division
Writing for the CourtSAXE
Citation909 N.Y.S.2d 697,77 A.D.3d 489
PartiesCDR CRÉANCES S.A.S., etc., Plaintiff-Respondent, v. Maurice COHEN, et al., Defendants-Appellants, Summerson International Establishment, et al., Defendants. CDR Creances S.A.S., etc., Plaintiff-Respondent, v. Leon Cohen, etc., et al., Defendants-Appellants, Iderval Holdings, Ltd., et al., Defendants.
Decision Date19 October 2010
909 N.Y.S.2d 697
77 A.D.3d 489


CDR CRÉANCES S.A.S., etc., Plaintiff-Respondent,
v.
Maurice COHEN, et al., Defendants-Appellants,
Summerson International Establishment, et al., Defendants.
CDR Creances S.A.S., etc., Plaintiff-Respondent,
v.
Leon Cohen, etc., et al., Defendants-Appellants,
Iderval Holdings, Ltd., et al., Defendants.


Supreme Court, Appellate Division, First Department, New York.

Oct. 19, 2010.

909 N.Y.S.2d 698

Dewey Pegno & Kramarsky LLP, New York (David S. Pegno of counsel), for appellants.

Kellner Herlihy Getty & Friedman, LLP, New York (Douglas A. Kellner of counsel), for respondent.

SAXE, J.P., FRIEDMAN, NARDELLI, CATTERSON, JJ.

77 A.D.3d 490

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered November 27, 2009, which, to the extent appealed from, denied the motion of defendants Maurice Cohen, Leon Cohen and Sonia Cohen for leave to amend, denied the motion of the Cohens and defendants Joelle Habib, Robert Maraboeuf, Allegria Achour Aich, and Patricia Habib Petetin for summary judgment dismissing the complaints, and granted plaintiff's disclosure motion, unanimously modified, on the law, to deny plaintiff's motion to compel the production of Maurice Cohen's personal income tax returns, without prejudice to renewal, and otherwise affirmed, without costs.

The motion court properly denied the Cohen defendants' motion to amend their answer to add various affirmative defenses after several years of litigation. Significant progress had been made in the cases and substantial discovery had been conducted, and the numerous proposed defenses would have necessitated no small measure of additional discovery ( compare Antwerpse Diamantbank N.V. v. Nissel, 27 A.D.3d 207, 810 N.Y.S.2d 180 [2006] ). In addition, all the proposed defenses were set forth in conclusory fashion and unsupported by any evidentiary showing, such as an affidavit by a person with knowledge of the facts ( see Guzman v. Mike's Pipe Yard, 35 A.D.3d 266, 825 N.Y.S.2d 480 [2006] ). Several also lacked merit as a matter of law. The claimed defenses of lack of personal jurisdiction, the contractual selection of a forum in France and plaintiff's lack of standing were waived by defendants' general appearance and participation in this litigation

over a period of several years, failure to assert the defenses in their original answers, and failure to seek amendment as of right ( see Frankel v. Siravo, 278 A.D.2d 66, 67, 717 N.Y.S.2d 566 [2000] ). The defenses...

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12 practice notes
  • FTBK Investor II LLC v. Genesis Holding LLC, 810163/2011
    • United States
    • United States State Supreme Court (New York)
    • August 19, 2014
    ...them with other admissible evidence. Anoun v. City of New York, 85 A.D.3d at 695, 926 N.Y.S.2d 98 ; CDR Créances S.A.S. v. Cohen, 77 A.D.3d 489, 490, 909 N.Y.S.2d 697 (1st Dep't 2010) ; Guzman v. Mike's Pipe Yard, 35 A.D.3d 266, 825 N.Y.S.2d 480.7 N.Y.S.3d 829 Genesis Holding seeks to add a......
  • Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.Á.R.L., 651693/2010
    • United States
    • United States State Supreme Court (New York)
    • September 16, 2014
    ...of a court that it could not be waived” [internal quotation marks and citation omitted]; see also CDR Creances S.A.S. v. Cohen, 77 A.D.3d 489, 490–491, 909 N.Y.S.2d 697 [1st Dept.2010] [holding that lack of standing defense “do[es] not implicate subject matter jurisdiction” and is subject t......
  • CDR Créances S.A. v. Cohen
    • United States
    • New York Supreme Court Appellate Division
    • December 27, 2012
    ...defendants continued to resist discovery orders that this Court found to be generally within the exercise of Supreme Court's discretion (77 A.D.3d 489, 491, 909 N.Y.S.2d 697 [1st Dept. 2010] [upholding all directives except production of Maurice Cohen's personal tax returns] ). In April 201......
  • Glynos v. Dorizas, Index No. 113984/2011
    • United States
    • United States State Supreme Court (New York)
    • March 6, 2015
    ...answer or supporting them with other admissible evidence. Anoun v. City of New York, 85 A.D.3d at 695; CDR Créances S.A.S. v. Cohen, 77 A.D.3d 489, 490 (1st Dep't 2010); Guzman v. Mike's Pipe Yard, 35 A.D.3d at 266.I. DEFENDANT'S PROPOSED TENTH AFFIRMATIVE DEFENSE Defendant claims that any ......
  • Request a trial to view additional results
12 cases
  • FTBK Investor II LLC v. Genesis Holding LLC, 810163/2011
    • United States
    • United States State Supreme Court (New York)
    • August 19, 2014
    ...them with other admissible evidence. Anoun v. City of New York, 85 A.D.3d at 695, 926 N.Y.S.2d 98 ; CDR Créances S.A.S. v. Cohen, 77 A.D.3d 489, 490, 909 N.Y.S.2d 697 (1st Dep't 2010) ; Guzman v. Mike's Pipe Yard, 35 A.D.3d 266, 825 N.Y.S.2d 480.7 N.Y.S.3d 829 Genesis Holding seeks to add a......
  • Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.Á.R.L., 651693/2010
    • United States
    • United States State Supreme Court (New York)
    • September 16, 2014
    ...of a court that it could not be waived” [internal quotation marks and citation omitted]; see also CDR Creances S.A.S. v. Cohen, 77 A.D.3d 489, 490–491, 909 N.Y.S.2d 697 [1st Dept.2010] [holding that lack of standing defense “do[es] not implicate subject matter jurisdiction” and is subject t......
  • CDR Créances S.A. v. Cohen
    • United States
    • New York Supreme Court Appellate Division
    • December 27, 2012
    ...defendants continued to resist discovery orders that this Court found to be generally within the exercise of Supreme Court's discretion (77 A.D.3d 489, 491, 909 N.Y.S.2d 697 [1st Dept. 2010] [upholding all directives except production of Maurice Cohen's personal tax returns] ). In April 201......
  • Glynos v. Dorizas, Index No. 113984/2011
    • United States
    • United States State Supreme Court (New York)
    • March 6, 2015
    ...answer or supporting them with other admissible evidence. Anoun v. City of New York, 85 A.D.3d at 695; CDR Créances S.A.S. v. Cohen, 77 A.D.3d 489, 490 (1st Dep't 2010); Guzman v. Mike's Pipe Yard, 35 A.D.3d at 266.I. DEFENDANT'S PROPOSED TENTH AFFIRMATIVE DEFENSE Defendant claims that any ......
  • Request a trial to view additional results

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