Strum v. Lasry

2026 NY Slip Op 30732(U)

• Court: New York Supreme Court, New York County
• Decided: March 2, 2026
• Docket: Index No. 159889/2024
• Status: Unpublished
• Author: Paul A. Goetz

Opinion

Strum v Lasry 2026 NY Slip Op 30732(U) March 2, 2026 Supreme Court, New York County Docket Number: Index No. 159889/2024 Judge: Paul A. Goetz Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.1598892024.NEW_YORK.001.LBLX038_TO.html[03/11/2026 3:45:50 PM] FILED: NEW YORK COUNTY CLERK 03/02/2026 04:50 PM INDEX NO. 159889/2024 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 03/02/2026

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ PART 47 Justice ---------------------------------------------------------------------------------X INDEX NO. 159889/2024 GINA STRUM, MOTION DATE N/A Plaintiff, MOTION SEQ. NO. 007 -v- MARC LASRY, SONIA GARDNER, AVENUE CAPITAL DECISION + ORDER ON GROUP MOTION Defendants. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 007) 76, 77, 78, 79, 80, 81, 82, 83, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 120 were read on this motion to/for DISMISS .

Upon the foregoing documents, it is

ORDERED that the portion of defendants’ motion seeking to dismiss plaintiff’s Tenth

cause of action for a breach of contract is granted because plaintiff has failed to plead that the

parties agreed to an enforceable contract, in that it is undisputed that the Term Sheet (NYSCEF

Doc No 80) stated that “[t]his term sheet has been prepared for discussion purposes only and

shall not create a legally binding contract or commitment by any party” (see Parkmerced Inv'rs,

LLC v WeWork Companies LLC, 217 AD3d 531 [1st Dept 2023] [dismissing breach of contract

claim based on a term sheet with explicit language stating sheet was non-binding], and as for

plaintiff’s argument that she has sufficiently alleged an “implied-in-fact” contract based upon

work performed prior to the dissemination of the Term Sheet, and defendant, Lasry’s

acknowledgments of those contributions (NYSCEF Doc No 70 ¶¶ 52 – 58, 75), in order to plead

a breach of contract cause of action based upon an implied promise, a court must be able to

“justifiably infer that the promise would have been explicitly made, had attention been drawn to

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it” (Maas v Cornell Univ., 94 NY2d 87, 94 [1999]), and here such an inference cannot be drawn

since the complaint admits that negotiations between the parties were actively taking place, until

they broke down, implind that an agreement had not been reached (see J. Grotto & Assoc., Inc. v

Hiro Real Estate Co., 271 AD2d 360 [1st Dept 2000], thus plaintiff has failed to plead facts that

sufficiently allege an enforceable implied contract; and it is further

ORDERED that the portion of defendants’ motion seeking to dismiss plaintiff’s

Fourteenth cause of action for breach of the covenant of good faith and fair dealing is granted

because as stated above, plaintiff has failed to allege the existence of a contract and there is “[n]o

implied covenant of good faith and fair dealing [ ] in the absence of a contract” (Gross v Kikuchi,

241 AD3d 1153, 1154 [1st Dept 2025]); and it is further

ORDERED that the portion of defendants’ motion seeking to dismiss plaintiff’s Ninth

cause of action for breach of fiduciary duty is granted because in order to set forth a breach of

fiduciary duty claim based upon a joint venture agreement it must allege a mutual promise or

undertaking (U.S. Bank N.A. v Kahn Prop. Owner, LLC, 206 AD3d 851 [2d Dept 2022]), and as

stated above plaintiff has failed to adequately allege such a promise, and while plaintiff argues

that the complaint adequately sets forth the indicia of an implied joint venture based upon the

parties’ conduct, the facts alleged here fail to meet this burden (see MacKay v Paesano, 185

AD3d 915 [2d Dept 2020] [implied joint venture not properly pled when a plaintiff fails to allege

facts that impute an agreement to share profits and losses]; compare Richbell Info. Services, Inc.

v Jupiter Partners, L.P., 309 AD2d 288 [1st Dept 2003] [implied joint venture pled because one

party contributed $85 million and other purchased assets worth $65 million]); and it is further

ORDERED that the portion of defendants’ motion seeking to dismiss plaintiff’s Fifteenth

and Sixteenth causes of action for Fraudulent Misrepresentation and for Constructive Fraud, is

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granted because in order to plead a cause of action for fraud, a plaintiff must allege that “he or

she actually relied on [a] misrepresentation, [and] that this reliance was reasonable or justifiable”

(Daly v Kochanowicz, 67 AD3d 78, 89 [2d Dept 2009]) and “[w]here a term sheet or other

preliminary agreement explicitly requires the execution of a further written agreement before any

party is contractually bound, it is unreasonable as a matter of law for a party to rely upon the

other party's promises to proceed with the transaction in the absence of that further written

agreement” (StarVest Partners II, L.P. v Emportal, Inc., 101 AD3d 610, 613 [1st Dept 2012]),

and as for plaintiff’s argument that her fraud claims are based upon alleged misrepresentations

made prior to the dissemination of the Term Sheet, “the complaint fails to set forth any dates or

details of the … defendants' alleged misstatements or misrepresentation” and must be dismissed

(Lee Dodge, Inc. v Sovereign Bank, N.A., 148 AD3d 1007, 1008 [2d Dept 2017]); and it is

further

ORDERED that the portion of defendants’ motion seeking to dismiss plaintiff’s Twelfth

and Thirteenth causes of action for defamation is denied because while in general there is an

“immunity from liability for defamation … for oral or written statements made … in connection

with a proceeding before a court when such words and writings are material and pertinent to the

questions involved” (Gottwald v Sebert, 40 NY3d 240, 253 [2023]), and such privilege extends

to quotes to the press summarizing legal filings (see Rubin v Napoli Bern Ripka Shkolnik, LLP,

151 AD3d 603 [1st Dept 2017]), there is an exception to the privilege which “prevents early

dismissal of a defamation claim where there are nonconclusory allegations that raise a question

of fact as to whether the underlying litigation was maliciously instituted for the purpose of

defaming or pressuring a party into taking certain action” (RCI Hosp. Holdings, Inc. v White, 220

AD3d 430, 430 [1st Dept 2023]), and here reading the complaint as true and “accord[ing]

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plaintiff[] the benefit of every possible favorable inference” (African Diaspora Mar. Corp. v

Golden Gate Yacht Club, 109 AD3d 204, 211 [1st Dept 2013]), plaintiff has alleged that the

parties were in negotiations to settle the matter and discouraged her from filing suit, however

they allegedly then filed their own suit to pressure plaintiff into accepting their settlement terms,

thus plaintiff has adequately alleged facts that raise a question of fact as to whether the suit was

maliciously instituted and consequently the defamation causes of action will not be dismissed at

this juncture; and it is further

ORDERED that defendants are directed to serve an answer to the amended complaint

within 20 days after service of a copy of this order with notice of entry.

3/2/2026 DATE PAUL A. GOETZ, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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