Judge Kaplan
http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=123994
GREAT American Opportunities Inc. (GAO) gave KB Dissolution Corp. (KBI) a promissory note when buying assets from KBI under an asset purchase agreement (APA). On March 22, 2010, the court dismissed KBI’s claims asserting breach of the note by non-payment; recovery of costs, expenses and attorney’s fees for enforcing the note; GAO’s breach of the covenant of good faith and fair dealing implied in the note and APA; and GAO’s breach of a covenant given by it in the APA. However, the March 22 order did not fully dispose of KBI’s claims against GAO. The court’s March 26, 2010, order dismissed GAO’s counterclaims. The court agreed with KBI’s claim that its previously dismissed first, second, and fourth claims for relief—for the note’s nonpayment; recovery of costs and expenses to enforce the note; and, GAO’s breach of a covenant given in the APA—were no longer premature—given that the March 26 order was a “final resolution” of GAO’s indemnification claim—and should be resurrected. Thus, amendment to resurrect KBI’s claim on the note would not be futile. However, rather than permitting KBI to amend its pleadings, the court vacated so much of its March 22 order as dismissed KBI’s first, second and fourth claims for relief.
