Replies to post #15627 on Avitar, Inc. (AVTI)

[kevinsPENNY]

You need to read this document, it will tell you the complete history of the case you keep mentioning.

http://ny.findacase.com/research/wfrmDocViewer.aspx/xq/fac./NY/2008/20080919_0010017.NY.htm/qx

Accordingly, it is

ORDERED that plaintiff's motion for a preliminary injunction is denied; and it is further

ORDERED that plaintiff's motion to dismiss defendant's counterclaims is granted in its entirety; and it is further

ORDERED that the remainder of the action shall continue.

[kevinsPENNY]

Pay particular attention to the following portions from
http://ny.findacase.com/research/wfrmDocViewer.aspx/xq/fac./NY/2008/20080919_0010017.NY.htm/qx

Sixth Counterclaim

Cyberlux's sixth counterclaim for breach of contract alleges that AJW made "false, fraudulent, misleading representations to induce" Cyberlux to hire Mr. Gelmon, a financial consultant. When Mr. Gelmon allegedly failed to produce alternative financing for Cyberlux, as was the purpose of his hiring, Cyberlux alleges a breach of contract on the part of AJW.

Nowhere in the answer or the briefs does Cyberlux point to any contract involving Gelmon, between the parties or otherwise. Therefore, in the absence of alleging the existence of an enforceable contract, Cyberlux fails to state a claim for breach of contract.

And...

Cyberlux is to repay the amount borrowed plus "interest on the unpaid principal balance at the rate of 10%...per annum." Consequently, "where the rate of interest on the face of the note, as here, is not in excess of the legal rate at the time of the loan..."