2157 ACP LLC v. FAMOUS INDUSTRIES INC (2021)

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered on or about November 7, 2019, which denied plaintiff and defendants' motions for summary judgment, unanimously affirmed, without costs.

In an effort to fulfill the requirement of a Site Development Agreement to timely obtain a loan commitment letter, plaintiff acquired a document titled “Commitment Letter” that contained specific terms and conditions upon which, subject to due diligence and consideration, Corvin Capital, LLC would commit to provide a loan to plaintiff.  In interpreting the document, the “plain meaning of words and phrases should be determined and the language construed so as to give full meaning and effect to all provisions” (V.C. Vitanza Sons Inc. v. New York City Hous. Auth., 7 A.D.3d 398, 398, 776 N.Y.S.2d 472 [1st Dept. 2004]).  The preamble language does not alter or neutralize the content of the straightforward material provisions offering a commitment to provide a loan.

However, the trial court properly denied summary judgment to either party because issues of fact exist as to, among other things, whether the Commitment Letter would satisfy the loan amount requirement in the Site Development Agreement given that there is no evidence presented to define the “as is” value of the subject property, and as to whether plaintiff was excused from making the $50,000 expense deposit at that time.