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Glatt v. Mariner Partners

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


October 8, 2009

ALAN D. GLATT, PLAINTIFF-APPELLANT-RESPONDENT, --
v.
MARINER PARTNERS, INC., EFENDANT-RESPONDENT-APPELLANT, WILLIAM MICHAELCHECK, DEFENDANT.

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.

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.

Mazzarelli, J.P., Friedman, Catterson, Renwick, Abdus-Salaam, JJ.

601590/07

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 Ruth & 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; see Triton Partners v Prudential Sec., 301 AD2d 411 [2003]).

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

20091008

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