May 28, 2013
Mark Kottler, Plaintiff-Appellant-Respondent,
Steven Sims, Defendant-Respondent-Appellant. Mark Kottler, Plaintiff-Respondent, Steven Sims, Defendant-Appellant.
Walter L. Rich, White Plains, for appellant-respondent/respondent.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Gregory A. Cascino of counsel), for respondent-appellant/appellant.
Acosta, J.P., Renwick, Richter, Feinman, JJ.
Order, Supreme Court, New York County (Donna M. Mills, J.), entered April 5, 2012, which denied plaintiff's motion for summary judgment in lieu of complaint, and denied defendant's cross motion to dismiss the complaint and for summary judgment dismissing the complaint, unanimously modified, on the law, to grant plaintiff's motion, and otherwise affirmed, without costs. Order, same court and Justice, entered November 15, 2012, which, to the extent appealed from, denied defendant's subsequent motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff presented two promissory notes obligating defendant to pay the amounts within 10 years from the dates of the notes, May 15, 1998 and December 11, 1998, and established that defendant had not paid when this action was commenced more than 10 years later, in 2011 (see Rice v Cohen, 161 A.D.2d 530 [1st Dept 1990]). In opposition, defendant failed to raise an issue of fact. His argument that the notes contain a condition precedent to his obligation to pay and the condition was not met is belied by the language of the notes. Each note provides that it "shall become due and payable 60 days following the later of the consummation of a registered public offering of shares of [Target Capital Partners, Inc. (TCP), a Connecticut corporation] and the release of any restrictive covenants on the shares of TCP then held by [defendant] and subject to the security interest created hereby." It is apparent from the wording of the note itself that rather than being a condition precedent, this provision constitutes an acceleration provision, which was never triggered.