Chongqing Huansong Indus. (Group) Co. Ltd. v Kinderhook Indus. LLC, 2024 NY Slip Op 02887 [227 AD3d 586]
May 28, 2024
Appellate Division, First Department
[*1]
Chongqing Huansong Industries (Group) Co. Ltd. et al., Appellants,
v
Kinderhook Industries LLC et al., Respondents.
Hogan Lovells US LLP, New York (Benjamin A. Fleming of counsel), for appellants.
Kirkland & Ellis LLP, New York (Lamina Bowen of counsel) and Kirkland & Ellis LLP, Chicago, IL (William E. Arnault, IV, of the bar of the State of Illinois, admitted pro hac vice of counsel), for Kinderhook Industries, LLC, and others, respondents.
Cohen & Gresser LLP, New York (Christine M. Jordan of counsel) and Kutak Rock, LLP, Scottsdale, AZ (Paul S. Gerding, Jr. of the bar of the State of Arizona, admitted pro hac vice of counsel), for Richard Godfrey, respondent.
Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered October 2, 2023, which, insofar as appealed from as limited by the briefs, granted defendants’ motions to dismiss the claims for intentional misrepresentation with prejudice, unanimously affirmed, with costs.
Supreme Court correctly found that plaintiffs failed to allege the intentional misrepresentation causes of action against defendants with the requisite particularity (CPLR 3016 [b]). Specifically, the complaint does not plead facts sufficient to permit a reasonable inference that the alleged misrepresentations by defendants were made with knowing falsity ( see Cronos Group Ltd. v XComIP, LLC , 156 AD3d 54 , 72 [1st Dept 2017]; FNF Touring LLC v Transform Am. Corp. , 111 AD3d 401 , 402 [1st Dept 2013]). The allegations of defendants’ attempts to perform on their assurances that all past and future debts of the distributor would be paid by offering payment proposals and making substantial partial payments, including approximately $18 million between October 20, 2021, and November 23, 2021, and $22 million between December 1, 2021, and January 12, 2022, do not permit a reasonable inference that defendants knowingly made false representations. Given the failure to adequately plead scienter, these claims were properly dismissed.
Plaintiffs did not make a timely amendment as of right under CPLR 3025 (a) by filing an amended complaint. Dismissal with prejudice was properly granted in the absence of any indication of what plaintiffs would have included in an amendment to meet the relevant pleading standards with respect to scienter ( see Izhaky v Izhaky , 215 AD3d 588 , 589 [1st Dept 2023]). Concur—Singh, J.P., Kennedy, Rodriguez, Pitt-Burke, Michael, JJ.
Motion for judicial notice, denied..