Opinion
2013-12-12
ATALAYA SPECIAL OPPORTUNITIES FUND IV LP, et al., Plaintiffs–Respondents, v. JAMES CRYSTAL, INC., et al., Defendants–Appellants.
Hinckley & Heisenberg LLP, New York (Christoph C. Heisenberg of counsel), for appellants. Perkins Coie LLP, New York (Gary F. Eisenberg of counsel), for respondents.
Hinckley & Heisenberg LLP, New York (Christoph C. Heisenberg of counsel), for appellants. Perkins Coie LLP, New York (Gary F. Eisenberg of counsel), for respondents.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered July 30, 2013, which, to the extent appealed from, granted plaintiffs' motion for summary judgment on the first and third causes of action, unanimously affirmed, with costs.
In opposition to plaintiffs' prima facie showing of their entitlement to enforce the loan, defendants failed to raise a triable issue of fact as to the existence of a binding proposal that compromised the debt. Following the expiration of the terms of a 2011 letter agreement between defendants and Wells Fargo Foothill, Inc., plaintiffs' predecessor in interest, Wells Fargo issued defendants a proposal for further compromising the balance owed under the loan. The proposal letter specifically identified itself as a “proposal, to be used as a basis for continued discussions,” and stated that, upon acceptance, a letter agreement would be prepared. The anticipation of a written agreement was consistent with the terms of the loan, which required that modifications be in writing and signed by the parties. No such formal writing was entered into ( see General Obligation Law § 15–301[1]; Kowalchuk v. Stroup, 61 A.D.3d 118, 121, 873 N.Y.S.2d 43 [1st Dept.2009] ).
The parties' subsequent communications also reflect the absence of an intent to be bound by the proposal. Defendants' conduct in proceeding with the sale of a radio station and plaintiffs' conduct in directing defendants to proceed with the sale and accepting a portion of the proceeds thereof are equally consistent with the parties' respective rights and obligations under the loan documents ( see Richardson & Lucas, Inc. v. New York Athletic Club of City of N.Y., 304 A.D.2d 462, 758 N.Y.S.2d 321 [1st Dept.2003]; Tierney v. Capricorn Invs., 189 A.D.2d 629, 631, 592 N.Y.S.2d 700 [1st Dept.1993], lv. denied81 N.Y.2d 710, 599 N.Y.S.2d 804, 616 N.E.2d 159 [1993] ).
We have considered defendants' remaining arguments and find them unavailing. MAZZARELLI, J.P., SWEENY, DeGRASSE, MANZANET–DANIELS, FEINMAN, JJ., concur.