Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts
Posted: May 24, 2016

Party That Failed to Give Contractually-Required Notice Prior to Bringing Suit Lacked Standing

On May 17, 2016, the First Department issued a decision in Nomura Asset Acceptance Corp. Alternative Loan Trust v. Nomura Credit & Capital, Inc., 2016 NY Slip Op 03837, holding that a party that failed to give contractually-required notice prior to bringing suit lacked standing to bring suit, explaining:

The summons with notice filed by the certificate holders on May 25, 2012, while timely, was ineffective, because the certificate holders lacked standing to assert claims against defendant. Plaintiff’s argument that it alleged compliance with the no-action clause, permitting the certificate holders to assert claims on behalf of the trust, is not persuasive, since the Pooling and Servicing Agreement specifically refutes this basis for the certificate holders’ allegations of standing. Thus, the untimely claim brought by plaintiff on November 30, 2012 could not relate back to the defective summons, because no valid action was commenced by the filing of that summons.

(Internal quotations and citations omitted). As the court explained, the failure to give notice was cured after the statute of limitations ran on the plaintiff’s claims, but since there could be no relation-back to the initial, ineffective, summons with notice, the claim was time-barred.

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