Fundamental Long Term Care Holdings, LLC v Cammeby's Funding LLC

Fundamental Long Term Care Holdings, LLC v Cammeby's Funding LLC 2013 NY Slip Op 00040 Decided on January 8, 2013 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 January 8, 2013
Tom, J.P., Andrias, Freedman, Román, Gische, JJ.
8954 650332/11

[*1]Fundamental Long Term Care Holdings, LLC, Plaintiff-Appellant, Leonard Grunstein, et al., Plaintiffs,

v

Cammeby's Funding LLC, et al., Defendants-Respondents.




Arent Fox LLP, New York (Allen G. Reiter of counsel), for
appellant.
Dechert LLP, New York (Steven A. Engel of counsel), for
respondents.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered June 18, 2012, which, granted defendants' request for disclosure of financial information relating to plaintiff Fundamental Long Term Care Holdings, LLC, unanimously reversed, on the law and the facts, without costs, and the request denied.

In this action, plaintiffs sought a declaration as to the interpretation of an option agreement. Defendants asserted a counterclaim for breach of contract, seeking specific performance of the option agreement and, in the alternative, damages. In a prior appeal, we affirmed orders that, inter alia, granted defendants' motion for summary judgment dismissing the complaint, and directed the entry of a judgment declaring that plaintiff Fundamental must issue ownership of one third of its equity units to defendant Cammeby's Funding LLC's designee, without regard to the capital contribution requirement contained in Fundamental's operating agreement (92 AD3d 449 [1st Dept 2012], lv granted 19 NY3d 1012 [2012]). Thereafter, defendants sought financial disclosure in order to support a request for additional relief that had not been previously sought or pled — namely, monetary damages in the event that Fundamental's assets had been materially dissipated following the exercise of the option. [*2]

Under the circumstances, defendants have failed to establish that the disclosure sought was "material and necessary in the prosecution or defense of" this action or the counterclaim (CPLR 3101[a]).

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

ENTERED: JANUARY 8, 2013

CLERK