Glatt v Mariner Partners, Inc.

Glatt v Mariner Partners, Inc. 2009 NY Slip Op 07204 [66 AD3d 440] October 8, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 9, 2009

Alan D. Glatt, Appellant-Respondent,
v
Mariner Partners, Inc., Respondent-Appellant, et al., Defendant.

—[*1] Farrell Fritz, P.C., New York (Peter A. Mahler of counsel), for appellant-respondent.

Covington & Burling LLP, New York (C. William Phillips of counsel), for respondent-appellant.

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered February 20, 2009, which granted plaintiff's motion to amend the complaint to augment his existing breach of contract cause of action, but denied so much of the motion as sought leave to add a cause of action for breach of the implied covenant of good faith and fair dealing, unanimously modified, on the law, and the motion to amend the complaint to add new allegations on the breach of contract claim denied, without costs.

Plaintiff's failure to submit an affidavit of merit with his motion to amend cannot be remedied by an affidavit submitted for the first time in reply (Schulte Roth & Zabel, LLP v Kassover, 28 AD3d 404, 405 [1st Dept 2006]). Thus, the motion to amend should have been denied. Were we to consider the contents of the proposed affidavit, it is nonetheless insufficient to excuse the long delay.

The cause of action for breach of the implied covenant of good faith and fair dealing was properly rejected as duplicative of so much of the breach of contract claim that this Court has already determined was dismissed for insufficiency (63 AD3d 428 [2009]; see Triton Partners v Prudential Sec., 301 AD2d 411 [2003]). Concur—Mazzarelli, J.P., Friedman, Catterson, Renwick and Abdus-Salaam, JJ.