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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: March 25, 2018

Plaintiff Not Entitled to Summary Judgment in Lieu of Complaint Because Condition Precedent For Suing on Note Not Met

On March 16, 2018, the Fourth Department issued a decision in Hogan v. Iskalo Off. Holdings III LLC, 2018 NY Slip Op. 01715, holding that a plaintiff was not entitled to summary judgment in lieu of complaint because a condition precedent for suing on a note had not been satisfied, explaining:

To prevail on a motion pursuant to CPLR 3213, the plaintiff must prove, inter alia, that he or she satisfied all conditions precedent to commencing the action. Plaintiff failed to meet that burden here. The note contains a condition precedent to suit, i.e., plaintiff must obtain the mortgage lender’s written consent before commencing or prosecuting any action or other legal proceeding relating to the Note. Plaintiff’s moving papers, however, do not establish that he satisfied that condition precedent by obtaining the lender’s written consent. Indeed, plaintiff’s moving papers ignore the condition precedent entirely. We therefore agree with defendant that the court erred in granting the motion.

(Internal quotations and citations omitted).

Cases in the Commercial Division of the New York courts usually involve a motion to dismiss at the outset and then a motion for summary judgment at the close of discovery, so such motions are a big part of our practice. The decision above is about a special procedure in New York for quickly resolving claims relating to unpaid notes or similar documents allowing the plaintiff to move for summary judgment at the beginning of an action. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions about seeking or opposing a motion for pre-trial dismissal or judgment of a commercial lawsuit.

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