PROJECT CRICKET ACQUISITION INC v. FLORIDA CAPITAL PARTNERS INC (2020)

Order, Supreme Court, New York County (Salliann Scarpulla, J.), entered January 14, 2019, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for leave to amend the complaint to allege fraud in the inducement, civil conspiracy, and breach of sections 2.2 and 2.3 of the stock purchase agreement, unanimously affirmed, without costs.

Supreme Court providently exercised its discretion in denying leave to amend the complaint (see e.g. MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d 499, 500, 901 N.Y.S.2d 522 [1st Dept. 2010] ).  The additional allegations of fraud in the inducement in the proposed Second Amended Complaint (SAC) merely add detail to previously alleged misrepresentations made in connection with plaintiff's purchase of USES Holding Corp. and its subsidiaries (the Company).  They do not substantively change the fraud in the inducement claim in the First Amended Complaint (FAC), which this Court dismissed as duplicative of the pending indemnification claims, which arise from alleged breaches of representations and warranties in the stock purchase agreement (SPA) (see Community Energy Alternatives v. Peatco II, 243 A.D.2d 371, 664 N.Y.S.2d 550 [1st Dept. 1997];  see also Project Cricket Acquisition, Inc. v. FCP Invs. VI, L.P., 159 A.D.3d 600, 74 N.Y.S.3d 517 [1st Dept. 2018], lv dismissed in part, denied in part 32 N.Y.3d 1080, 89 N.Y.S.3d 111, 113 N.E.3d 945 [2018] ).

Absent a valid underlying fraudulent inducement claim, Supreme Court properly denied leave to amend the FAC to plead civil conspiracy (Kuroda v. SPJS Holdings, L.L.C., 971 A.2d 872, 892 [Del. Ch. 2009] ).

Supreme Court also properly denied leave to plead a claim for breach of sections 2.2 and 2.3 of the SPA, which set forth the purchase price adjustment protocol.  The proposed SAC alleges that the net working capital statement was not prepared consistently with GAAP or the Company's historical accounting practices and that executives instead repeatedly changed the Company's accounting practices and manipulated the net working capital statement to maximize profits.  Even assuming these allegations are not barred by Chicago Bridge & Iron Co. N.V. v. Westinghouse Elec. Co. LLC, 166 A.3d 912, 916 [Del. 2017], plaintiff's corrected closing working capital statement was not delivered within the period specified in the SPA, as this Court observed when it previously dismissed the same cause of action (Project Cricket Acquisition, 159 A.D.3d at 601, 74 N.Y.S.3d 517).  Although the proposed SAC alleges that defendants prepared a draft closing net working capital statement and somehow prevented plaintiff from making the necessary corrections in time, the SPA makes clear that timely calculation and preparation of the closing net working capital statement was plaintiff's obligation.  Accordingly, the new allegations do not change the fact that plaintiff's corrected closing net working capital statement was not delivered in time to calculate and receive a purchase price adjustment under the SPA.