

TRC Master Fund, LLC v AP Gas & Elec. (TX) LLC (2019 NY Slip Op 03272)





TRC Master Fund, LLC v AP Gas & Elec. (TX) LLC


2019 NY Slip Op 03272


Decided on April 30, 2019


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 30, 2019

Friedman, J.P., Gische, Webber, Kahn, Oing, JJ.


9112 654968/16

[*1]TRC Master Fund, LLC, Plaintiff-Appellant,
vAP Gas & Electric (TX) LLC, Defendant-Respondent.


Rubin LLC, New York (Paul A. Rubin of counsel), for appellant.
Bryan Cave Leighton Paisner LLP, New York (Thomas J. Schell of counsel), for respondent.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered March 13, 2018, which granted defendant's motion to dismiss the complaint, unanimously reversed, on the law, without costs, and the motion denied.
Defendant's reading of the agreement, which the motion court accepted, requires a deviation from the express text, impermissibly rendering certain provisions without meaning or effect (see Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004]). Plaintiff purchased a claim that defendant made in a bankruptcy proceeding filed by a third party. The purchase agreement gives plaintiff the option of demanding immediate payment if at any time prior to emergence from bankruptcy or liquidation the claim becomes impaired. The bankruptcy trustee filed an objection to the claim, which was withdrawn 37 days later. The objection constitutes an impairment under the agreement, triggering plaintiff's right to demand immediate payment under the agreed-to formula, notwithstanding that the impairment was later removed. The complaint therefore states a valid cause of action and should be reinstated. Pursuant to the agreement, upon repayment the claim would belong to defendant.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 30, 2019
CLERK


