Smart Pay Check Cashing Corp. v Action Check Cashing Corp.

[*1] ? 2014 NY Slip Op 50885(U) Decided on May 22, 2014 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 22, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ALIOTTA, J.P., PESCE and WESTON, JJ.
2012-2080 Q C

Smart Pay Check Cashing Corp., Appellant,

against

Action Check Cashing Corp., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (James E. d'Auguste, J.), entered July 5, 2012. The order granted defendant's motion for summary judgment dismissing the complaint's remaining cause of action and denied plaintiff's cross motion for summary judgment upon that cause of action.

ORDERED that the order is affirmed, without costs.

On December 17, 2005, plaintiff and defendant entered into an asset purchase agreement (APA) whereby defendant agreed to purchase four of plaintiff's check cashing locations. Insofar as is relevant to this appeal, the APA provides, as a condition precedent to closing, that defendant receive New York State Banking Department check cashing licenses covering the four locations (APA ¶ 17.1 [b]). Defendant was not obligated to close the transaction unless all conditions precedent were fulfilled (APA ¶ 17.2). The transaction's purchase price, as set forth in the APA, was dependent upon the gross revenues generated from all four locations over a specified three-month period after the receipt of the licenses to conduct business (APA ¶ 2.1 [b]).

Defendant was unable to obtain licenses from the New York Sate Banking Department for two of the four locations. When plaintiff requested that defendant close on the transaction, defendant refused. As a result, plaintiff commenced this action in Supreme Court, Queens County, initially alleging six causes of action. Prior to the transfer of this action to the Civil Court pursuant to CPLR 325 (d), the Supreme Court dismissed all causes of action except the first one, alleging breach of the check cashing contract on two grounds: that defendant failed to pay the purchase price, and that defendant breached the implied covenant of good faith and fair dealing with respect to its applications to the New York State Banking Department for the licenses necessary to operate the four locations.

In December of 2011, defendant moved for summary judgment dismissing the sole remaining cause of action, and plaintiff cross-moved for summary judgment upon that cause of action. In support of its motion, defendant submitted, among other things, an affidavit which outlined all the steps defendant had engaged in when it had tried to obtain licenses from the Banking Department. By order entered July 5, 2012, the Civil Court (James E. d'Auguste, J.) granted defendant's motion and denied plaintiff's cross motion. This appeal by plaintiff ensued.

Defendant made out a prima facie showing that it had acted in good faith in its attempt to obtain licenses necessary to operate all four locations. Plaintiff failed to rebut this showing. In addition, defendant demonstrated that the conditions precedent to closing under the APA had not [*2]been met. Consequently, defendant was not in breach of contract by failing to tender the agreed-upon purchase price (see Perna v Desai, 101 AD2d 857 [1984], affd 63 NY2d 898 [1984]; see also Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]).

Accordingly, the order is affirmed.

Aliotta, J.P. Pesce and Weston, JJ., concur.

Decision Date: May 22, 2014