Opinion
692 Index No. 652103/22 Case No. 2023–00258
10-03-2023
INVICTUS GLOBAL MANAGEMENT LLC, Plaintiff–Appellant, v. GE ENGINE SERVICES, LLC, Defendant–Respondent.
Law Offices of Martin Eisenberg, White Plains (Martin Eisenberg of counsel), for appellant. Sidley Austin LLP, New York (Tyler J. Domino of counsel), for respondent.
Law Offices of Martin Eisenberg, White Plains (Martin Eisenberg of counsel), for appellant.
Sidley Austin LLP, New York (Tyler J. Domino of counsel), for respondent.
Oing, J.P., Kennedy, Shulman, Pitt–Burke, JJ.
Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered January 5, 2023, which, as amended by order, same court and Justice, entered January 13, 2023, denied plaintiff's motion for summary judgment on its first and third causes of action and granted defendant's cross-motion for summary judgment dismissing the first cause of action and so much of the third cause of action (for attorneys’ fees) as relates to the first, unanimously affirmed, with costs.
Plaintiff would be entitled to repayment of the purchase price if it failed to be substituted for defendant in respect of the bankruptcy claim that it purchased. However, no such failure occurred; on the contrary, plaintiff was eventually substituted for defendant on the bankruptcy claims register. While there was a delay in substitution due to errors by the bankruptcy claims and noticing agent, the contract does not entitle plaintiff to repayment of the purchase price if there is a delay in substitution.
Because the condition in the contract did not occur, the cases on which plaintiff relies ( CRG Fin. LLC v. Amloid Corp., 191 A.D.3d 461, 142 N.Y.S.3d 152 [1st Dept. 2021] ; TRC Master Fund, LLC v. AP Gas & Elec. [TX], LLC, 175 A.D.3d 1156, 106 N.Y.S.3d 602 [1st Dept. 2019] ; Longacre Master Fund, Ltd. v. ATS Automation Tooling Sys. Inc., 496 Fed.Appx. 135 [2d Cir.2012] ) are distinguishable.
Since no disallowance under section 5(e) of the contract occurred, plaintiff is not entitled to attorneys’ fees pursuant to section 6.