Opinion
2013-04-2
Rubin SCHRON, et al., Plaintiffs–Respondents, v. Leonard GRUNSTEIN, et al., Defendants–Appellants, Troutman Sanders LLP, et al., Defendants.
Zuckerman Spaeder LLP, New York (Paul Shechtman of counsel), for appellants. Dechert LLP, New York (Andrew J. Levander of counsel), for respondents.
Zuckerman Spaeder LLP, New York (Paul Shechtman of counsel), for appellants. Dechert LLP, New York (Andrew J. Levander of counsel), for respondents.
SWEENY, J.P., RENWICK, RICHTER, ROMÁN, JJ.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered September 6, 2012, which, after a nonjury trial pursuant to CPLR 3212(c), directed, among other things, that defendants-appellants (defendants) proceed to closing and deliver the membership units of defendant SVCare Holdings LLC to plaintiffs pursuant to their exercise of the option to purchase such units, unanimously affirmed, with costs.
Plaintiffs made a prima facie case against defendants by producing the notes and asserting without contradiction that the loan they evidenced had not been repaid ( UrbanAmerica, L.P. II v. Carl Williams Group, L.L.C., 95 A.D.3d 642, 643, 945 N.Y.S.2d 233 [1st Dept. 2012] ).
Defendants failed to carry their burden of demonstrating, in support of their defense of lack of consideration, that plaintiffs failed to fund the loan ( see Carlin v. Jemal, 68 A.D.3d 655, 656, 891 N.Y.S.2d 391 [1st Dept. 2009] ). Defendants' defense is barred by the provision in the 2006 restated loan agreement waiving “any defenses” to and “reduction” in the loan obligation ( see Banque Nationale de Paris v. 1567 Broadway Ownership Assoc., 214 A.D.2d 359, 361, 625 N.Y.S.2d 152 [1st Dept. 1995] ). The defense also is barred by the provisions in the loan documents rendering the inclusion of the loan on a plaintiff's books and records conclusive in the absence of a showing of “manifest error.” Further, there is no basis for disturbing the court's findings of fact, based largely on credibility determinations ( see Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369 [1992] ). Given the foregoing bases for the court's determination, we decline to address defendants' contentions regarding certain legal conclusions of the court, which do not alter the decision we are reaching here.
We have considered defendants' remaining contentions and find them unavailing.