In a February 14, 2011, decision by Justice Bucaria, the court granted in part and denied in part defendants’ motion to dismiss. Plaintiff-buyer sued defendant-LLC members for breach of contract and specific performance in connection with the purchase of their interests in two logistics companies. Defendants moved to dismiss based on documentary evidence and failure to state a cause of action. The court rejected defendants’ argument that the parties’ agreement was insufficiently certain as to a material price term, finding that a purchase price of approximately a half million dollars subject to adjustment based on valuation by an accountant was reasonably certain, “particularly if the parties have agreed that fair market value is to be determined by appraisal.” The court also rejected defendants’ argument that plaintiff’s claim for unjust enrichment was duplicative of his breach of contract claim because plaintiff had yet to establish the existence of the alleged oral agreement. The court otherwise granted defendants’ motion as to plaintiff’s causes of action for 1) fraud because it was duplicative of plaintiff’s breach of contract claim; 2) negligent misrepresentation because plaintiff failed to allege the requisite “special or privity-like relationship”; and 3) conversion because plaintiff failed to allege the existence of a “specific identifiable fund.”
Nigro v Owen Logistics LLC, Sup Ct, Nassau County, February 14, 2011, Bucaria, J., Index No. 13054/10
*For a more detailed analysis of this decision and its impact, see our colleague Peter A. Mahler’s post at New York Business Divorce.