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MISAMORE v. GODFREY

Index No. 655980/19. Appeal No. 15040. Case No. 2021-00853.

201 A.D.3d 474 (2022)

156 N.Y.S.3d 841

2022 NY Slip Op 00131

Bruce Misamore, Appellant, v. David Godfrey et al., Respondents.

Appellate Division of the Supreme Court of New York, First Department.

Decided January 11, 2022.

Attorney(s) appearing for the Case

Storch Byrne LLP, New York (Edward P. Dolido of counsel), for appellant.

Faegre Drinker Biddle & Reath LLP, New York (Jeffrey S. Jacobson of counsel), for David Godfrey, Steven Theede and Michel Guillenschmidt, respondents.

Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo, P.C., New York (Kevin N. Ainsworth of counsel), for Marc Fleischman, respondent.

Concur—Gische, J.P., Kern, Friedman, Oing, Singh, JJ.

The breach of contract claim is conclusively refuted by the alleged agreement and other documents attached to the complaint, which show that the obligations that plaintiff claims were breached are not contained in the agreement (see Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 [2002]).

Because defendants were not parties to the alleged agreement, they cannot be held liable for a breach of the implied covenant...

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