John Street Leasehold L. L. C. v. Chemical Bank

Appellate Division of the Supreme Court of New York

John Street Leasehold L. L. C. v. Chemical Bank

248 A.D.2d 146, 669 N.Y.S.2d 572, 1998 N.Y. App. Div. LEXIS 2032

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 5, 1998

StatusPublished

This text of 248 A.D.2d 146 (John Street Leasehold L. L. C. v. Chemical Bank) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

John Street Leasehold L. L. C. v. Chemical Bank, 248 A.D.2d 146, 669 N.Y.S.2d 572, 1998 N.Y. App. Div. LEXIS 2032 (N.Y. Ct. App. 1998).

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Opinion

—Order, Supreme Court, New York County (Ira Gammerman, J.), entered September 23, 1996, which granted defendant’s motion pursuant to CPLR 3211 (a) (1), (3), (5) and (7) to dismiss plaintiffs complaint, unanimously affirmed, with costs.

The Participation Agreement, executed by the various banking institutions participating in the subject syndicated loan, unequivocally provided that the initial determination as to a waiver of any term or condition of the loan, mortgage or commitment was to be made by the lead bank and then would be subject to ratification by a supermajority of the “aggregate face amount of outstanding participations”. Plaintiffs attempt to vary the terms of the Participation Agreement, through enforcement of an oral agreement allegedly entered into by the parties’ predecessors in interest, is barred by the parol evidence rule (Marine Midland Bank v Thurlow, 53 NY2d 381). Moreover, no cause of action for breach of the alleged oral agreement based upon defendant’s “improper influence” may reasonably be inferred. This conclusion, sustainable upon the pleadings alone, is additionally supported by defendant’s evidentiary submissions, which are properly considered on the present motion challenging legal sufficiency (see, O’Donnell, Fox & Gartner v R-2000 Corp., 198 AD2d 154), inasmuch as they flatly contradict plaintiffs conclusory allegations that defendant exerted influence over the lead bank with respect to the lead bank’s determination to reject plaintiffs request for a waiver of the “call provision” of the mortgage. Furthermore, the nexus between plaintiffs damages and the alleged breach, even as pleaded, is tenuous at best.

We have reviewed plaintiffs other arguments and find them to be without merit.

Concur — Rosenberger, J. P., Ellerin, Wallach and Rubin, JJ.

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—Order, Supreme Court, New York County (Ira Gammerman, J.), entered September 23, 1996, which granted defendant’s motion pursuant to CPLR 3211 (a) (1), (3), (5) and (7) to dismiss plaintiffs complaint, unanimously affirmed, with costs.

The Participation Agreement, executed by the various banking institutions participating in the subject syndicated loan, unequivocally provided that the initial determination as to a waiver of any term or condition of the loan, mortgage or commitment was to be made by the lead bank and then would be subject to ratification by a supermajority of the “aggregate face amount of outstanding participations”. Plaintiffs attempt to vary the terms of the Participation Agreement, through enforcement of an oral agreement allegedly entered into by the parties’ predecessors in interest, is barred by the parol evidence rule (Marine Midland Bank v Thurlow, 53 NY2d 381). Moreover, no cause of action for breach of the alleged oral agreement based upon defendant’s “improper influence” may reasonably be inferred. This conclusion, sustainable upon the pleadings alone, is additionally supported by defendant’s evidentiary submissions, which are properly considered on the present motion challenging legal sufficiency (see, O’Donnell, Fox & Gartner v R-2000 Corp., 198 AD2d 154), inasmuch as they flatly contradict plaintiffs conclusory allegations that defendant exerted influence over the lead bank with respect to the lead bank’s determination to reject plaintiffs request for a waiver of the “call provision” of the mortgage. Furthermore, the nexus between plaintiffs damages and the alleged breach, even as pleaded, is tenuous at best.

We have reviewed plaintiffs other arguments and find them to be without merit.

Concur — Rosenberger, J. P., Ellerin, Wallach and Rubin, JJ.

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Bluebook (online)

248 A.D.2d 146, 669 N.Y.S.2d 572, 1998 N.Y. App. Div. LEXIS 2032, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-street-leasehold-l-l-c-v-chemical-bank-nyappdiv-1998.

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