Opinion
05-31-2016
Timothy ROBINSON, et al., Plaintiffs–Appellants, v. OZ MASTER FUND, LTD., et al., Defendants–Respondents.
Robins Kaplan LLP, New York (David Leichtman of counsel), for appellants. Blank Rome LLP, New York (Kenneth L. Bressler of counsel), for Oz Master Fund, Ltd., Denarius Touch, L.L.C., Highbridge International LLC and OZ Financial Investors II, Inc., respondents. Kaplan Rice LLP, New York (Howard J. Kaplan and Justin M. Garbaccio of counsel), for Plainfield Special Situations Master Fund Limited, Plainfield Asset Management LLC, Plainfield Direct West IV, LLC and Plainfield Direct LLC, respondents.
Robins Kaplan LLP, New York (David Leichtman of counsel), for appellants.
Blank Rome LLP, New York (Kenneth L. Bressler of counsel), for Oz Master Fund, Ltd., Denarius Touch, L.L.C., Highbridge International LLC and OZ Financial Investors II, Inc., respondents.
Kaplan Rice LLP, New York (Howard J. Kaplan and Justin M. Garbaccio of counsel), for Plainfield Special Situations Master Fund Limited, Plainfield Asset Management LLC, Plainfield Direct West IV, LLC and Plainfield Direct LLC, respondents.
Opinion Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered October 19, 2015, which granted defendants' motions to dismiss the complaint, unanimously affirmed, with costs.
Contrary to plaintiffs' assertion, none of the agreements at issue barred defendants from participating in debtor-in-possession financing for Solidus Networks, Inc. (Solidus), and in that new capacity seeking superpriority of the new indebtedness over unsecured claims. Plaintiffs point to only one specific contract provision, which is in the Consent Agreement. However, plaintiffs are not party to the Consent Agreement, which was only between defendants and Solidus. Because that agreement was entered into for a separate purpose (to allow Solidus to enter into the transaction with plaintiffs), pursuant to a prior securities purchase agreement, entered into well before and unconnected to the current transaction, and is between defendants and Solidus, but not plaintiffs, it cannot be said that the Consent Agreement should be read together with the other agreements in the transaction.
The cause of action for breach of the covenant of good faith and fair dealing was properly dismissed, since such a claim may not be used to impose obligations that alter or add to the express terms of the parties' agreements (see Peter R. Friedman, Ltd. v. Tishman Speyer Hudson L.P., 107 A.D.3d 569, 570, 968 N.Y.S.2d 41 [1st Dept.2013] ). Furthermore, the claim for unjust enrichment was properly dismissed, because the subject matter of the claim is covered by the various express agreements in the transaction (see Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388, 521 N.Y.S.2d 653, 516 N.E.2d 190 [1987] ). We have considered plaintiffs' remaining contentions and find them unavailing.
FRIEDMAN, J.P., RENWICK, MOSKOWITZ, RICHTER, KAPNICK, JJ., concur.