Opinion
9112 Index 654968/16
09-17-2019
TRC MASTER FUND, LLC, Plaintiff–Appellant, v. AP GAS & ELECTRIC (TX), LLC, Defendant–Respondent.
Rubin LLC, New York (Paul A. Rubin of counsel), for appellant. Bryan Cave Leighton Paisner LLP, New York (Thomas J. Schell of counsel), for respondent.
Rubin LLC, New York (Paul A. Rubin of counsel), for appellant.
Bryan Cave Leighton Paisner LLP, New York (Thomas J. Schell of counsel), for respondent.
Friedman, J.P., Gische, Webber, Kahn, Oing, JJ.
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered March 13, 2018, which granted defendant's motion to dismiss the complaint, unanimously reversed, on the law, without costs, and the motion denied.
Defendant's reading of the agreement, which the motion court accepted, requires a deviation from the express text, impermissibly rendering certain provisions without meaning or effect (see Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 N.Y.3d 470, 475, 775 N.Y.S.2d 765, 807 N.E.2d 876 [2004] ). Plaintiff purchased a claim that defendant made in a bankruptcy proceeding filed by a third party. The purchase agreement gives plaintiff the option of demanding immediate payment if at any time prior to emergence from bankruptcy or liquidation the claim becomes impaired. The bankruptcy trustee filed an objection to the claim, which it then withdrew 37 days later. The objection constitutes an impairment under the agreement, triggering plaintiff's right to demand immediate payment under the agreed-to formula, notwithstanding that the impairment was later removed. The complaint therefore states a valid cause of action and should be reinstated. As acknowledged by plaintiff, but disputed by defendant, upon repayment the claim would belong to defendant.
The Decision and Order of this Court entered herein on April 30, 2019 ( 171 A.D.3d 652, 97 N.Y.S.3d 841 [1st Dept. 2019] ) is hereby recalled and vacated (see M–2854 decided simultaneously herewith).