Ken Johnson, et al., Plaintiffs-Appellants, v. <<

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

Ken Johnson, et al., Plaintiffs-Appellants,

4111

Decided: January 27, 2011

Gonzalez, P.J., Sweeny, Acosta, Freedman, Abdus-Salaam, JJ. 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.

- against -

Société Générale S.A.,

Defendant-Respondent.

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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.

Plaintiffs-investors' factual allegations failed to support a claim that they were entitled to legal recourse against defendant-guarantor based on its guaranty of the non-party debtor's alleged payment obligations owed to plaintiffs (see generally Robinson v. Robinson, 303 A.D.2d 234, 235 [2003];  Kalmanash v. Smith, 291 N.Y. 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 N.Y.2d 138, 141-142 [1993];  Midland Steel Warehouse Corp. v Godinger Silver Art, 276 A.D.2d 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.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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DEPUTY CLERK