On October 7, 2026, the Second Department issued a decision in Erkman Intl., Co., Ltd. v. PepsiCo, Inc., 2026 NY Slip Op. 05768, holding that aiding and abetting claims should be dismissed for failure adequately to allege substantial assistance, explaining:
Here, contrary to the plaintiff’s contention, the Supreme Court properly granted that branch of PepsiCo’s motion which was to dismiss the cause of action alleging aiding and abetting a breach of fiduciary duty asserted against it. To assert a cause of action for aiding and abetting a breach of fiduciary duty, the plaintiff must allege, with particularity, knowledge of the alleged tortious conduct by the aider and abettor and substantial assistance by the aider and abettor in the achievement of the tortious conduct. The elements must be pleaded with particularity pursuant to CPLR 3016(b). Substantial assistance requires an affirmative act on the defendant’s part; mere inaction can constitute substantial assistance only if the defendant owes a fiduciary duty directly to the plaintiff. Here, the plaintiff failed to sufficiently allege facts to show that PepsiCo provided substantial assistance to the Sipahioglu defendants with respect to their alleged breach of fiduciary duty to the plaintiff.
Likewise, the Supreme Court also properly granted that branch of PepsiCo’s motion which was to dismiss the cause of action alleging aiding and abetting fraud asserted against it. To plead a cause of action to recover damages for aiding and abetting fraud, the complaint must allege the existence of an underlying fraud, knowledge of the fraud by the aider and abettor, and substantial assistance by the aider and abettor in the achievement of the fraud. Substantial assistance requires an affirmative act on the defendant’s part. Conclusory allegations that the aider and abettor had actual knowledge of fraud, together with allegations that would be sufficient to state a claim against the principal participants in the fraud, are insufficient, without more, to establish substantial assistance. Here, the facts as alleged in the complaint are insufficient to show that PepsiCo substantially assisted the Sipahioglu defendants in the achievement of the alleged fraud.
(Internal quotations and citations omitted).