This action is brought by plaintiff, SPAC Advisory Partners LLC, against numerous defendants, including Zapp Electric Vehicles Limited (Zapp Limited) and Zapp Electric Vehicles Group Limited (Zapp Group). Zapp Group is the parent company of Zapp Limited.

Plaintiff alleges that defendants breached two agreements: a letter agreement and a side letter agreement. These agreements (i) outline SPAC's role in providing financial advisory services to one or more Zapp entities in facilitating a merger or acquisition, and (ii) establish options by which Zapp entities could pay SPAC for its services.

Zapp Group now moves to dismiss plaintiff's complaint against it. Plaintiff cross-moves for partial summary judgment on its breach-of-contract and account-stated claims against Zapp Limited. Zapp Group's motion is granted. Plaintiff's cross-motion is denied.

Plaintiff asserts claims against Zapp Group for breach of contract, account stated, breach of the implied covenant of good faith and fair dealing, unjust enrichment, quantum meruit, and fraud. In moving to dismiss, Zapp Group argues that plaintiff's complaint contains impermissible group pleading, because it lumps Zapp Group and Zapp Limited together—referring to them together as "Zapp"—such that is impossible to distinguish one entity's conduct from that of the other.

Plaintiff contends that it is permitted to lump the two defendants together, because they are alter egos or successors in interest. But the allegations underlying plaintiff's alter-ego/successor theories are wholly conclusory and are made only on information and belief. (See NYSCEF No. 10 at paras 19-33, 56-62 [amended complaint].) The allegations are insufficiently detailed to support imputing liability from Zapp Limited to Zapp Group. Plaintiff's claims against Zapp Group cannot draw strength from allegations of conduct by (or liability of) Zapp Limited.

1. Plaintiff asserts its breach-of-contract claim against "Zapp." Plaintiff alleges that "Zapp" breached two agreements: a letter agreement and a side letter agreement. (See NYSCEF No. 10 at ¶¶ 73-74 [amended complaint].) Zapp Limited and plaintiff are signatories to the letter agreement, which provides that plaintiff would provide financial services to Zapp Limited in exchange for payment. Zapp Group is not a party to the initial agreement. It therefore is not bound by, and may not be held liable under, that agreement.

In contrast, plaintiff, Zapp Limited, and Zapp Group signed the side letter agreement. Still, that agreement does not bind Zapp Group. It provides that if certain conditions are met, Limited may pay plaintiff in shares of Group stock, rather than cash. Although Zapp Group signed the agreement, the agreement does not impose any obligations on it. Zapp Group therefore cannot have breached obligations under that agreement, either. Plaintiff's breach-of-contract claim against Zapp Group is dismissed. And because no underlying agreement binds Zapp Group, plaintiff's claim against it for breach of the implied covenant of good faith and fair dealing is also dismissed.

2. As with its breach-of-contract claim, plaintiff asserts its account-stated claim against "Zapp," without distinguishing between Limited and Group. As a result, plaintiff does not allege that it presented an invoice to Zapp Group itself—only against "Zapp"—as required to make out an account-stated claim. Indeed, the invoice on which plaintiff relies refers expressly to Zapp Limited as the party being invoiced, and does not mention Zapp Group. (See NYSCEF No. 17.) Plaintiff's account-stated claim against Zapp Group is dismissed.

3. On its unjust-enrichment, quantum-meruit, and fraud claims, plaintiff again does not distinguish between Limited and Group. Plaintiff has thus failed to allege that Zapp Group was enriched by, or benefitted from, plaintiff's services or that plaintiff detrimentally relied on [*2]fraudulent (mis)representations made by Zapp Group.^[FN1] These claims are dismissed as well.

In short: Absent a viable alter-ego or successor-in-liability theory (which plaintiff's complaint does not establish), plaintiff's claims against Zapp Group fail to state a cause of action.^[FN2] Zapp Group's motion to dismiss is granted.

Plaintiff cross-moves for partial summary judgment on its breach-of-contract and account-stated claims against Zapp Limited. (NYSCEF No. 39 [notice of motion].) In opposition, Zapp Limited argues that a party may not seek affirmative relief by cross-motion against a nonmoving party. (See CPLR 2215; Mango v Long Is. Jewish-Hillside Med. Ctr., 123 AD2d 843, 844 [2d Dept 1986] ["A cross motion is an improper vehicle for seeking affirmative relief from a nonmoving party."].) Plaintiff argues that Zapp Limited is a moving party, because, in its opening papers, Zapp Group requests that the complaint be dismissed against both itself and Zapp Limited for impermissible group pleading. The court disagrees with plaintiff.

The notice of motion here is clear that Zapp Group, and only Zapp Group, is the moving party. (NYSCEF No. 31 at 1.) That Zapp Group requested dismissal of plaintiff's claims against both itself and Zapp Limited does not make Limited a moving party. Nor has this court considered on this motion whether to dismiss plaintiff's claims against Zapp Limited in any event. Plaintiff's cross-motion for summary judgment is denied. The court does not reach the parties' remaining arguments.^[FN3]

Accordingly it is

ORDERED that Zapp Group's motion to dismiss plaintiff's complaint against it is granted, and the complaint is dismissed as against Zapp Group with costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that the balance of the claims in this action are severed and shall continue; and it is further

ORDERED that Zapp Group serve a copy of this order with notice of its entry on all [*3]parties and on the office of the County Clerk (by the means set forth in the court's e-filing protocol, available on the e-filing page of the court's website, https://ww2.nycourts.gov/courts/1jd/supctmanh/E-Filing.shtml), which shall enter judgment accordingly; and it is further

ORDERED that the parties appear before the court for a telephonic preliminary conference on April 1, 2025.