WELLS FARGO BANK MINNESOTA NATIONAL ASSOCIATION v. CD VIDEO INC

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Supreme Court, Appellate Division, First Department, New York.

WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, Indenture Trustee, Plaintiff-Respondent, v. CD VIDEO, INC., a California Corporation, et al., Defendants-Appellants.

Decided: October 18, 2005

TOM, J.P., ANDRIAS, SULLIVAN, GONZALEZ, SWEENY, JJ. Spach Capaldi & Waggaman, LLP, Newport Beach, CA (Madison S. Spach, Jr., of the California Bar, admitted pro hac vice, of counsel), for appellants. Kutak Rock LLP, New York (Robert A. Jaffe of counsel), for respondent.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered July 9, 2004, which, inter alia, granted plaintiff's motion for summary judgment on its claims for breach of an equipment lease and to enforce a personal guarantee, unanimously affirmed, with costs.

Inasmuch as it is undisputed that plaintiff took the assignment of the subject equipment lease from the lessor in good faith and for value, and the lease absolutely and unconditionally obligated defendant lessee to pay the amounts due thereunder to an assignee of the lessor, plaintiff was not required to prove the lessor's performance as a condition of enforcing the lessee's obligation (see Wells Fargo Bank Minnesota, N.A. v. BrooksAmerica Mtge. Corp., 2004 WL 2072358, 2004 U.S. Dist. LEXIS 18573 [S.D.N.Y.2004], affd. 419 F.3d 107 [2d Cir.2005];  In re O.P.M. Leasing Servs., Inc., 21 B.R. 993, 1005-1006 [Bankr.S.D.N.Y.1982] ).   Moreover, defendant lessee's express waiver of defenses barred it from asserting as against this plaintiff that its obligation under the lease had not commenced for failure of a condition precedent thereto (see Credit Alliance Corp. v. David O. Crump Sand & Fill Co., 470 F.Supp. 489, 492 [S.D.N.Y.1979] ), and in any event, defendant lessee was bound by its contrary written representation that the lessor had performed “fully and satisfactorily” (see Wells Fargo Bank Minnesota, N.A. v. Nassau Broadcasting Partners, L.P., 2003 WL 22339299, 2003 U.S. Dist. LEXIS 18285 [S.D.N.Y.2003] ).

We have considered defendants' remaining arguments and find them unavailing.