Commercial Division Blog

Posted: April 1, 2022 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Joshua Wurtzel, / Category Contracts

Court Dismisses Counterclaim Concerning Breach of Confidentiality Agreement Because Subsequent Agreement on Same Subject Matter Controls

In a Decision and Order, dated February 1, 2022, in Lazar v. Dweck, 2022 N.Y. Slip. Op. 30406(U), Justice Jennifer Schecter granted plaintiff’s motion to dismiss a counterclaim alleging breach of a confidentiality and non-disclosure agreement. The Court explained: 

Section 14.9 of the amended operating agreement (the AOA) provides that "This Agreement, together with all Exhibits hereto, constitutes the entire agreement of the Members relating to the Company with respect to the subject matter hereof and supersedes any and all prior contracts or agreements with respect to the subject matter hereof, whether oral or written" (Dkt. 206 at 22).  "The parties' subsequent agreement on the same subject matter controls" (Dkt. 61 at 1, citing Hyuncheol Hwang v Mirae Asset Sec. (USA) Inc., 165 AD3d 413, 85 N.Y.S.3d 38 [1st Dept 2018]). Since the AOA governs Duke's internal affairs and the parties' relationship with the Company, it supersedes the 2016 agreement's provisions governing the confidentiality of Duke's information and the sixth counterclaim is dismissed.

The attorneys at Schlam Stone & Dolan frequently litigate issues concerning confidentiality and non-disclosure agreements.  Please contact the Commercial Division Blog editors at if you or a client have questions concerning such issues.