

Rhodium Special Opportunity Fund, LLC v Life Trading Holdco, LLC (2015 NY Slip Op 04250)





Rhodium Special Opportunity Fund, LLC v Life Trading Holdco, LLC


2015 NY Slip Op 04250


Decided on May 19, 2015


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 19, 2015

Mazzarelli, J.P., Acosta, Saxe, Manzanet-Daniels, Clark, JJ.


15161 653452/13

[*1] Rhodium Special Opportunity Fund, LLC, Plaintiff-Appellant,
vLife Trading Holdco, LLC, Defendant-Respondent, AXA Equitable Life Insurance Company, et al., Defendants.


Law Offices Of Susan R. Nudelman, Dix Hills (Susan R. Nudelman of counsel), for appellant.
Joseph Hage Aaronson LLC, New York (Gregory P. Joseph and Roman Asudulayev of counsel), for respondent.

Order, Supreme Court, New York County (Melvin L. Schweizer, J.), entered April 2, 2014, which granted defendant Life Trading Holdco, LLC's (defendant) motion to dismiss pursuant to CPLR 3211(a)(1), unanimously affirmed, with costs.
Contrary to plaintiff's assertion, the parties' confidentiality agreement was unambiguous, and by its plain language barred any claim for failing to negotiate or enter into a transaction to purchase the assets at issue, unless and until the parties had signed a definitive written agreement (see Slattery Skanska Inc. v American Home Assur. Co., 67 AD3d 1, 13-14 [1st Dept 2009]). Thus, defendant's submission of the confidentiality agreement, coupled with plaintiff's failure to plead the existence of the requisite agreement, was fatal to plaintiff's complaint (see Jordan Panel Sys. Corp. v Turner Constr. Co., 45 AD3d 165, 172-173 [1st Dept 2007]). The requirement of an executed, definitive written agreement was also fatal to plaintiff's claims, first asserted on appeal, of breach of the covenant of good faith (see id.) and promissory estoppel (Prospect St. Ventures I, LLC v Eclipsys Solutions Corp., 23 AD3d 213 [1st Dept 2005]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 19, 2015
CLERK


