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KIND OPERATIONS INC. v. AUA PRIVATE EQUITY PARTNERS, LLC

Index No. 653788/19. Appeal No. 13996. Case No. 2020-04190.

195 A.D.3d 446 (2021)

2021 NY Slip Op 03529

Kind Operations Inc., Appellant, v. AUA Private Equity Partners, LLC, et al., Respondents.

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

Decided June 3, 2021.

Attorney(s) appearing for the Case

Goodwin Procter LLP, New York ( Adam Slutsky of counsel) and Goodwin Procter LLP, Boston, MA ( David J. Zimmer of the bar of the State of California and the Commonwealth of Massachusetts, admitted pro hac vice, of counsel), for appellant.

Vedder Price P.C., New York ( Daniel C. Green of counsel), for respondents.

Concur—Manzanet-Daniels, J.P., Kapnick, Mazzarelli, Oing, JJ.

The allegations of the complaint do not establish a continuity of ownership following AOG's purchase of defendant Pa Co-Man, Inc.'s assets from third-party secured creditors, and therefore fail to establish that the asset purchase transaction was a de facto merger (see Matter of TBA Global, LLC v Fidus Partners, LLC, 132 A.D.3d 195, 209-210 [1st Dept 2015]). We note that the other indicia of de facto merger, such as assumption of...

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