Johnson v Société Générale S.A., 2011 NY Slip Op 00418 [80 AD3d 530]

January 27, 2011

Appellate Division, First Department

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Ferber Chan Essner & Coller, LLP, New York (Robert M. Kaplan of counsel), for appellants.

Shearman & Sterling LLP, New York (Kirsten Nelson Cunha of counsel), for respondent.

Judgment, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered March 4, 2010, dismissing the amended complaint for failure to state a claim, unanimously affirmed, with costs.

Plaintiff investors’ factual allegations failed to support a claim that they were entitled to legal recourse against defendant guarantor based on its guaranty of the nonparty debtor’s alleged payment obligations owed to plaintiffs ( see generally Robinson v Robinson , 303 AD2d 234, 235 [2003]; Kalmanash v Smith , 291 NY 142, 154 [1943]). The amended complaint essentially acknowledges that there is no definitive sum owed plaintiffs by the debtor, and that a trial on plaintiffs’ claims against the debtor would be necessary to determine such sum, if any ( see generally Phoenix Acquisition Corp. v Campcore, Inc. , 81 NY2d 138, 141-142 [1993]; Midland Steel Warehouse Corp. v Godinger Silver Art , 276 AD2d 341, 343-344 [2000]). Plaintiffs’ “belie[f]” that the debtor might owe them $1,000,000 in payments on their investments is entirely speculative and unsupported. Accordingly, no obligation can be said to have accrued against the guarantor here. Concur—Gonzalez, P.J., Sweeny, Acosta, Freedman and Abdus-Salaam, JJ..