Genger v. Genger

135 A.D.3d 454, 22 N.Y.S.3d 433

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 7, 2016
• Docket: 16585
• Status: Published

Opinion

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered January 8, 2015, which, insofar as appealed from as limited by the briefs, granted the motion by cross claim defendant Trans-Resources, Inc. to dismiss the cross claims of the Sagi Genger 1993 Trust, and denied the cross claimant’s request to replead, unanimously affirmed, with costs.

The court properly dismissed the fraud and tortious interference with prospective economic relations cross claims as inadequately pleaded and based on conjecture.

The aiding and abetting a breach of fiduciary duty cross claim was also properly dismissed. Even assuming there was some basis for a relevant fiduciary relationship here, appellant could not assert a claim that respondent aided and abetted any breach of fiduciary duty committed by its own officer (see Buttonwood Tree Value Partners, L.P. v R.L Polk & Co., 2014 WL 3954987, *5, 2014 Del Ch LEXIS 141, *14-15 [Aug. 7, 2014, No. 9250-VCG]).

The 2004 agreement that transferred stock to appellant cannot be the basis for a tortious interference with contract claim. The stock transfer in that agreement was void ab initio because it violated the notice provisions of a 2001 stockholders agreement, which provided that any attempt to transfer shares in violation of the notice provision “shall be void.”

Leave to replead was properly denied, in light of the flaws at the heart of appellant’s claims, and its failure to submit any arguments indicating that it would be able to state any viable causes of action upon repleading (see Gold Mech. Contrs. v Lloyds Bank P.L.C., 197 AD2d 384, 385 [1st Dept 1993]). Concur — Tom, J.P., Mazzarelli, Richter and Gische, JJ.