| Genger v Genger |
| 2016 NY Slip Op 00056 [135 AD3d 454] |
| January 7, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Arie Genger et al., Plaintiffs, v Sagi Genger et al., Defendants. Sagi Genger, Individually and as Assignee of the Sagi Genger 1993 Trust, Cross-Claimant, Counterclaimant and Third-Party Claimant-Appellant, et al., Cross-Claimants, Counterclaimants and Third-Party Claimants, v Arie Genger et al., Cross-Claim, Counterclaim and/or Third-Party Defendants, and Trans-Resources, Inc., Cross-Claim, Counterclaim and/or Third-Party Defendant-Respondent. |
Morgan Lewis & Bockius LLP, New York (John Dellaportas of counsel), for appellant.
Skadden, Arps, Slate, Meagher & Flom LLP, New York (Thomas J. Allingham II of the bar of the State of Delaware, admitted pro hac vice, and John Boyle of counsel), for respondent.
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. [Prior Case History: 2015 NY Slip Op 30008(U).]