Opinion
5806 Index 654057/15
02-22-2018
DIGITAL GADGETS, LLC, Plaintiff–Appellant, 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.
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.
Friedman, J.P., Sweeny, Kahn, Singh, Moulton, JJ.
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 A.D.3d 479, 480, 991 N.Y.S.2d 32 [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 [S.D. N.Y.2008] ).