BDC Fin. LLC v Barclays Bank PLC

BDC Fin. LLC v Barclays Bank PLC 2022 NY Slip Op 00117 Decided on January 11, 2022 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 and Entered: January 11, 2022
Before: Renwick, J.P., Kapnick, Moulton, Kennedy, Scarpulla, JJ.
Index No. 650375/08 Appeal No. 15013-15014 Case No. 2021-00037, 2021-00045, 2021-01938

[*1]BDC Finance LLC, Plaintiff-Appellant,

v

Barclays Bank PLC, Defendant-Respondent.

Joseph Hage Aaronson LLC, New York (Gregory P. Joseph of counsel), for appellant.

Sullivan & Cromwell LLP, New York (Jeffrey Thomas Scott of counsel), for respondent.

Judgment, Supreme Court, New York County (Andrea Masley, J.), entered April 22, 2021, awarding defendant damages on its counterclaims, unanimously reversed, on the law, with costs, the judgment vacated, defendant's motion for summary judgment as to damages denied, and the matter remanded for further proceedings in accordance herewith. Appeal from order, same court and Justice, entered December 12, 2020, which granted defendant's motion for summary judgment and denied plaintiff's motion for summary judgment dismissing the counterclaims, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

The parties' agreement provides the nondefaulting party (defendant) with the discretion to make its loss calculation "reasonably" and "in good faith." We find that plaintiff's expert evidence raised an issue of fact as to the reasonableness and good faith of defendant's loss calculation (see Lehman Bros. Intl. [Europe] v AG Fin. Prods., Inc., 168 AD3d 527 [1st Dept 2019]). Thus, we remand the matter for a trial of whether the calculation was "reasonable under the circumstances" (id. at 528).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 11, 2022