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Glatt v. Mariner Partners, Inc.
Citations: 66 A.D.2d 440; 885 N.Y.S.2d 604
Court: Appellate Division of the Supreme Court of the State of New York; October 8, 2009; New York; State Appellate Court
The Supreme Court of New York County issued an order on February 20, 2009, which partially granted the plaintiff's motion to amend the complaint regarding a breach of contract claim but denied the addition of a new cause of action for breach of the implied covenant of good faith and fair dealing. The court unanimously modified this decision, ruling that the motion to amend the complaint to introduce new allegations related to the breach of contract was denied without costs. The plaintiff's failure to submit an affidavit of merit with the initial motion to amend could not be rectified by a subsequent affidavit submitted in reply, as established in precedent (Schulte Roth & Zabel, LLP v. Kassover). Therefore, the motion to amend should have been denied. Furthermore, even if the proposed affidavit were considered, it was deemed insufficient to justify the delay. The court also affirmed that the cause of action for breach of the implied covenant was correctly rejected as it was duplicative of the breach of contract claim previously dismissed for insufficiency. The decision was concurred by Justices Mazzarelli, Friedman, Catterson, Renwick, and Abdus-Salaam.