RBL BANK LIMITED v. VERIA LIFESTYLE INC (2026)

Order, Supreme Court, New York County (Andrew Borrok, J.), entered on or about April 24, 2025, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment, unanimously affirmed, with costs.

In November 2017, plaintiff loaned approximately $10 million to defendant Veria Lifestyle Inc. under the party's Facility Agreement.  Veria and the guarantor defendant defaulted on repayment of the loan and plaintiff thereafter commenced this action.

Defendants' argument that plaintiff, a foreign banking corporation, lacked capacity to sue was properly rejected.  As Supreme Court correctly found, plaintiff's occasional and sporadic business dealings in New York did not constitute “doing business” for purposes of Business Corporation Law §§ 103 or 1312 (see AirTran N.Y., LLC v. Midwest Air Group, Inc., 46 AD3d 208, 212 [1st Dept 2007];  Intermar Overseas v. Argocean, 117 A.D.2d 492, 497 [1st Dept 1986] ).  Thus, Business Corporation Law § 1312's requirement that foreign corporations “doing business” in the state register with the state before being permitted to maintain any action or special proceeding in the state does not apply.  Because it does not apply, whether plaintiff met the exception to it as set out in Business Corporation Law § 103 – including whether the foreign corporation engages in lawful business under the Banking Law – is irrelevant.  Moreover, Banking Law § 200's requirement that a debt be secured by a mortgage does not prevent plaintiff from bringing this action.  It is undisputed that defendants failed to provide plaintiff with the no objection certificate as required by the parties' agreement, which would have rendered the loan secured by a mortgage and would have additionally exempted plaintiff from the Banking Law's requirement.  Because defendants brought about the inability to qualify for this exception, they cannot rely on it to defeat plaintiff's suit.

In any event, defendants waived the Banking Law defense by failing to plead it initially, then failing to appeal the court's denial of the motion to amend to add the defense (see U.S. Bank, N.A. v. Bernabel, 125 AD3d 541, 541 [1st Dept 2015] ).

Defendants' counterclaims for breach of the Facility Agreement and for breach of the covenant of good faith and fair dealing were properly dismissed, as they were based on terms not in the contract, and defendants were in breach (see CORE Group Mktg. LLC v MIP One Wall St. Acquisition LLC, 213 AD3d 444, 445 [1st Dept 2023] ).