Teneyck, Inc. v Rosenberg (2013 NY Slip Op 07687)

Teneyck, Inc. v Rosenberg

2013 NY Slip Op 07687 [111 AD3d 529]

November 19, 2013

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, December 25, 2013

Teneyck, Inc., Formerly Known as Neill Supply Co., Inc., Appellant,
v
Robert D. Rosenberg, Respondent.

—[*1] Fox Rothschild LLP, New York (Ernest E. Badway of counsel), for appellant.

Wilentz Goldman & Spitzer, P.A., New York (Willard C. Shih of counsel), for respondent.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered January 11, 2013, which granted defendant's motion to dismiss the complaint, unanimously affirmed, with costs.

This action is barred by the doctrine of in pari delicto (see Kirschner v KPMG LLP, 15 NY3d 446, 464 [2010]). The parties pleaded guilty in federal court to identical charges stemming from the underlying bribery scheme.

Contrary to plaintiff's contention, the adverse interest exception does not avail it (see id. at 466-467). Apart from plaintiff's guilty plea, the complaint itself demonstrates that plaintiff profited from the bribery scheme.

Plaintiff failed to show that leave to amend the complaint was warranted. Concur—Andrias, J.P., Friedman, Richter, Manzanet-Daniels and Feinman, JJ. [Prior Case History: 39 Misc 3d 194.]