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Emmet & Co., Inc. v. Catholic Health East

Supreme Court of New York, First Department

February 27, 2014

Emmet & Co., Inc., et al., Plaintiffs-Appellants,
v.
Catholic Health East, et al., Defendants-Respondents.

Kasowitz, Benson, Torres & Friedman LLP, New York (Gavin D. Schryver of counsel), for appellants.

Shearman & Sterling LLP, New York (Richard F. Schwed of counsel), for Catholic Health East, respondent.

Winston & Strawn LLP, New York (J. Erik Connolly of the bar of the State of Illinois, admitted pro hac vice of counsel), for Merrill Lynch, Pierce, Fenner & Smith Inc., respondent.

Tom, J.P., Friedman, Saxe, Clark, JJ.

Judgment, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered December 13, 2012, dismissing the complaint, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered September 25, 2012, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiffs' status as former bondholders does not render the "no action" clauses of the indentures governing the bonds inapplicable to them (Bank of N.Y. v Battery Park City Auth., 251 A.D.2d 211 [1st Dept 1998]). Nor are they excused from compliance by the indentures' "principal and interest" clauses, which only authorize actions for past due principal and interest (id.).


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