In an October 18, 2011 decision by Justice Warshawsky, the court denied the plaintiffs’ motion to amend the complaint pursuant to CPLR 3025(b) to include claims for breach of contract and waiver with respect to defendant Benco LLC’s (“Benco”) alleged failure to consummate a closing to purchase the plaintiffs’ interest in the defendant Commander Enterprises Centereach, LLC (“CEC”). The defendants opposed the motion asserting that the new claims were without merit, and were based on transactions that were previously resolved by the court and affirmed by the Second Department. The individual plaintiffs were holders of a 20% interest in CEC; Benco owned the remaining 80%. The underlying dispute arose from the individual plaintiffs’ sale of their interests in CEC to the plaintiff company Verbenco, LLC (“Verbenco”). In a prior proceeding, the court held and the Second Department affirmed that an operating agreement from the year 2000 was controlling. Pursuant to the operating agreement, Benco alone was entitled to purchase the interests. Therefore, the court held that the plaintiffs’ attempted transfer to Verbenco terminated their membership in CEC and was an offer to sell their interest, which Benco accepted. In denying the current motion, the court held: 1) that the proposed amended complaint did not raise any “‘additional or subsequent transactions or occurrences’ as mandated by § 3025(b)”; and 2) that it was bound by the prior decision of the Second Department.
Verdeber v Commander Enters. Centereach, LLC, Sup Ct, Nassau County, October 18, 2011, Warshawsky, J, Index No. 00769/09.