| Lefkara Group, LLC v First Am. Intl. Bank |
| 2017 NY Slip Op 03708 |
| Decided on May 9, 2017 |
| 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 May 9, 2017
Acosta, J.P., Renwick, Mazzarelli, Gische, Gesmer, JJ.
651678/13 -1930
v
First American International Bank, Defendant-Respondent.
Siskopoulos Law Firm, LLP, New York (Alexandra Siskopoulos of counsel), for appellant.
Cullen and Dykman LLP, New York (Samit G. Patel of counsel), for respondent.
Order, Supreme Court, New York County (Lawrence K. Marks, J.), entered April 28, 2016, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Pursuant to the Revolving Credit Master Note under which defendant bank extended to plaintiff a $300,000 line of credit to complete construction of a building plaintiff was developing, available funds could be reduced if the bank deemed the collateral insufficient. At the time the bank delayed or refused to make a disbursement under the line of credit, a problem with the connection to a sewer had been discovered but the scope, extent, or cost of correcting it was unknown. Moreover, the bank submitted evidence, including bank statements, debit slips, and other documentation of every drawdown of the available loan and line of credit, which showed that, at the time, there were not enough funds available for plaintiff to complete construction, and by the time the cost of addressing the sewer issue became clear, the available funds were nearly depleted. In opposition to defendant's motion, plaintiff only made conclusory assertions that defendant erroneously calculated the remaining funds.
Given the unknown costs involved in unlocking the value of the collateral and given that insufficient funds remained for plaintiff to complete the project, the bank properly exercised its right under the Revolving Credit Master Note in delaying or refusing disbursement of funds while demanding additional collateral. Moreover, because there were insufficient funds available under the loan and line of credit to complete construction, any delay or failure by defendant to make the requested disbursements was not a proximate cause of plaintiff's damages. Accordingly, the motion court correctly dismissed the breach of contract claim and the duplicative claim for breach of the covenant of good faith and fair dealing (see Netologic, Inc. v Goldman Sachs Group, Inc., 110 AD3d 433, 433-434 [1st Dept 2013]).
M-1930 - Lefkara Group v First American International Bank
Motion to strike reply brief denied.THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 9, 2017
CLERK