AJW Partners, LLC v Admiralty Holding Co.

AJW Partners, LLC v Admiralty Holding Co. 2012 NY Slip Op 01772 Decided on March 13, 2012 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 March 13, 2012
Tom, J.P., Saxe, Acosta, DeGrasse, Román, JJ.
7073 110349/10

[*1]AJW Partners, LLC, et al., Plaintiffs-Appellants,

v

Admiralty Holding Company, etc., et al., Defendants, Herbert C. Leeming, Defendant-Respondent.




Olshan Grundman Frome Rosenzweig & Wolosky LLP, New
York (Thomas J. Fleming of counsel), for appellants.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered March 11, 2011, which granted defendant Leeming's motion to dismiss the complaint as against him, unanimously affirmed, with costs.

Plaintiffs allege that Leeming, an officer of both defendant Admiralty Holding Company (AHC) and defendant Undersea Recovery Corporation (URC), knew about plaintiffs' security agreements with AHC when he allowed AHC to enter into a license agreement with URC, and therefore knew that the license agreement would constitute a breach of the security agreements between plaintiffs and AHC. These allegations fail to state a cause of action against Leeming for tortious interference with contract or fraudulent conveyance based on the acts of either AHC or URC. As to tortious interference with contract, there are no allegations that Leeming's procurement of the breach was malicious; that the URC license was not in the best interests of both URC and AHC; that Leeming received any personal benefit other than the benefit he received as an officer of both companies; or that Leeming acted outside the scope of his employment in entering into the URC license agreement (see Murtha v Yonkers Childcare Assoc., 45 NY2d 913,917 [1978]). As to fraudulent conveyance, there are no factual allegations that give rise to an inference that Leeming, as an individual engaged in any conduct, to avoid payment to, or defraud, plaintiffs (see Wall St. Assoc. v Brodsky, 257 AD2d 526, 529 [1999]).

Plaintiffs contend that the motion court erred in failing to address their request for leave to replead. However, there is no indication in the record that plaintiffs actually made such a request. In any event, the record contains no proposed pleading and no affidavit of merit (see [*2]Fletcher v Boies, Schiller & Flexner, LLP, 75 AD3d 469, 470 [2010]).

We have considered plaintiffs' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 13, 2012

CLERK