Opinion
7462 Index 653687/15
10-25-2018
Staffan AHRENBERG, et al., Plaintiffs–Appellants, v. Patrick LIOTARD–VOGT, et al., Defendants, ASW Capital AG, Defendant–Respondent.
Pollack, Pollack, Isaac & DeCicco, New York (Michael H. Zhu of counsel), for appellants. Pepper Hamilton, LLP, New York (Lindsay D. Breedlove of counsel), for respondent.
Pollack, Pollack, Isaac & DeCicco, New York (Michael H. Zhu of counsel), for appellants.
Pepper Hamilton, LLP, New York (Lindsay D. Breedlove of counsel), for respondent.
Friedman, J.P., Kapnick, Webber, Oing, Moulton, JJ.
Order, Supreme Court, New York County (Anil C. Singh, J.), entered April 6, 2017, which, to the extent appealed from, denied plaintiffs' motion for leave to amend the complaint to assert claims against defendant ASW Capital for aiding and abetting fraud and breach of fiduciary duty, unanimously affirmed, with costs.
The motion court was correct in denying leave to amend since plaintiffs did not show that they could plead the "substantial assistance" element of a cause of action for aiding and abetting breach of fiduciary duty and fraud (see Stanfield Offshore Leveraged Assets, Ltd. v. Metropolitan Life Ins. Co., 64 A.D.3d 472, 476, 883 N.Y.S.2d 486 [1st Dept. 2009], lv denied 13 N.Y.3d 709, 2009 WL 3379028 [2009] ; Kaufman v. Cohen, 307 A.D.2d 113, 125, 760 N.Y.S.2d 157 [1st Dept. 2003] ). ASW Capital was not a party to and did not participate in the transactions that plaintiffs allege were improper, namely, the actual merger accomplished by ASW Media Consult Corporation and the valuation process in connection with the merger.
We have considered plaintiffs' remaining arguments and find them unavailing.