Alpha Capital Anstalt v Generex Biotechnology Corp.

Alpha Capital Anstalt v Generex Biotechnology Corp. 2020 NY Slip Op 02877 Decided on May 14, 2020 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 May 14, 2020
Friedman, J.P., Gische, Kapnick, González, JJ.
11513 650918/19

[*1] Alpha Capital Anstalt, Plaintiff-Appellant,

v

Generex Biotechnology Corporation, et al., Defendants-Respondents.

Hoffner PLLC, New York (David S. Hoffner of counsel), for appellant.

Barket Epstein Kearon Aldea & LoTurco, LLP, Garden City (Donna Aldea of counsel), for respondents.

Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered on or about May 30, 2019, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment in lieu of complaint, pursuant to CPLR 3213, unanimously affirmed, without costs.

The note upon which plaintiff sues does not qualify as an instrument for the payment of money only (CPLR 3213; see PDL Biopharma, Inc. v Wohlstadter, 147 AD3d 494 [1st Dept 2017]). Insofar as it required defendant Generex to become listed on a NASDAQ exchange (the failure to do so triggering Generex's alleged default and this litigation), it "required something in addition to the defendant's explicit promise to pay a sum of money" (Interman Indus. Prods. v R.S.M. Electron Power, 37 NY2d 151, 155 [1975]).

In view of our finding that the note does not qualify for CPLR 3213 treatment, we do not reach the other issues raised.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 14, 2020

CLERK