| Digital Gadgets, LLC v White Oak Global Advisors, LLC |
| 2018 NY Slip Op 01265 |
| Decided on February 22, 2018 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on February 22, 2018
Friedman, J.P., Sweeny, Kahn, Singh, Moulton, JJ.
5806 654057/15
v
White Oak Global Advisors, LLC, Defendant-Respondent.
Judd Burstein P.C., New York (Ali R. Jaffery of counsel), for appellant.
Schlam Stone & Dolan LLP, New York (Niall D. Ó Murchadha of counsel), for respondent.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered December 5, 2016, which granted defendant's motion to dismiss the complaint, unanimously affirmed, with costs.
The documentary evidence utterly refutes plaintiff's allegations that defendant breached its agreement to lend plaintiff money (see Lezama v Cedano, 119 AD3d 479, 480 [1st Dept 2014]). The provisions of the commitment letter and term sheet, taken together, required no less than a second-priority lien on the New Jersey property as a condition precedent to defendant's commitment to lend the money. Plaintiff was unable to meet this condition. It was not unreasonable for defendant, exercising the discretion given to it in the commitment letter, to conclude that plaintiff's inability to meet this condition, coupled with the fact that actual revenue was 30% less than projected revenue, was material and adverse to its business interests (see generally UBS Sec. LLC v Finish Line, Inc., 2008 WL 536616, *5 [SD NY 2008]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 22, 2018
CLERK