LAIG v. Medanito S.A. , 29 N.Y.S.3d 166 ( 2016 )

LAIG v Medanito S.A. (2016 NY Slip Op 03443)

LAIG v Medanito S.A.

2016 NY Slip Op 03443

Decided on May 3, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 3, 2016
Mazzarelli, J.P., Friedman, Andrias, Moskowitz, Kahn, JJ.

1044 160103/14

[*1]LAIG, Plaintiff-Appellant,

v

Medanito S.A., Defendant-Respondent.

White and Williams LLP, New York (Andrew I. Hamelsky of counsel), for appellant.

Becker, Glynn, Muffly, Chassin & Hosinski LLP, New York (Zeb Landsman of counsel), for respondent.

Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered August 24, 2015, which granted defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7), unanimously affirmed, with costs.

In this action alleging breach of a non-circumvention provision in the parties' confidentiality agreement connected with an investment opportunity, plaintiff's conclusory allegation that it remained ready, willing and able to close on the purchase of the investment business on the scheduled closing date was factually insufficient in light of unrefuted documentary evidence that plaintiff's sources for the financing it required to make the purchase had abandoned the deal within 10 days of the scheduled closing (see Leon v Martinez , 84 NY2d 83 [1994]). The documentary evidence conclusively demonstrates that plaintiff has no cause of action for breach of the non-circumvention clause based on defendant's unilateral purchase of the investment entity without first securing plaintiff's formal decision as to whether or not it would participate, and, by reasonable inference, meet its purchase obligation at the impending closing.

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 3, 2016

CLERK