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Bersin Props., LLC v. Nomura Credit & Cap., Inc.

Bersin Props., LLC v. Nomura Credit & Cap., Inc.

Supreme Court of New York, New York County

February 7, 2022, Decided

Index No. 452630/2014

Opinion

Robert R. Reed, J.

The following e-filed documents, listed by NYSCEF document number (Motion 006) 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 306 were read on this motion to/for PRECLUDE.

The following e-filed documents, listed by NYSCEF document number (Motion 007) 312, 313, 314, 315, 316, 317, 318, 319, 320, 321, 322, 323, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 382, 383, 384, 385, 386, 387, 388, 389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 401, 402, 403, 404, 405, 406, 407, 408, 409, 410, 411, 412, 413 were read on this motion to/for JUDGMENT - SUMMARY.

Defendants Nomura Credit & Capital, Inc. and NCCMI, Inc. (collectively, Nomura) move for an order, excluding the Expert Report of Richard K. Hollowell dated May 18, 2020 (Hollowell Report) offered by plaintiff Bersin Properties, [*2]  LLC (Bersin), and precluding Mr. Hollowell from offering expert opinions in connection with any substantive motion or at trial in this action (motion No. 006). Defendants further move for an order granting them summary judgment dismissing the complaint (motion No. 007).

This breach of contract action arises out of the parties' obligations under a loan agreement pursuant to which Nomura agreed to loan Bersin $135 million for Bersin's renovation of an existing shopping mall in upstate New York. Bersin claims that, in February 2009, Nomura breached its obligations to extend the loan's maturity date and to advance over $54 million in funding under that loan. Nomura moves for summary judgment urging that the undisputed evidence shows that Bersin failed to meet a condition precedent to extending the loan  [**2]  and failed to meet the loan's requirements for such loan advance. Bersin contends that there are triable issues of fact as to whether it was excused from the condition precedent for the extension based on Nomura's bad faith conduct and whether Nomura's refusal to fund the advance was in breach, since the amounts requested were within the loan budget.

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2022 N.Y. Misc. LEXIS 495 *; 2022 NY Slip Op 50084(U) **; 74 Misc. 3d 1209(A); 159 N.Y.S.3d 828; 2022 WL 433654

 [**1]  Bersin Properties, LLC, Plaintiff, against Nomura Credit & Capital, Inc., NCCMI, INC., Defendant.

Notice: PUBLISHED IN TABLE FORMAT IN THE NEW YORK SUPPLEMENT.

THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

Prior History: Bersin Props., LLC v. Nomura Credit & Cap., Inc., 2022 N.Y. Misc. LEXIS 631 (N.Y. Sup. Ct., Feb. 7, 2022)

CORE TERMS

loan agreement, damages, Advances, lost profits, counterstatement, funding, costs, expenses, deposit, mall, obligations, requests, maturity date, acquisition, replacement, asserts, condition precedent, force majeure, covenant, leases, conditions, breached, contends, argues, urges, summary judgment, interest rate, contractor, undisputed, contracts