| Walnut Place LLC v Countrywide Home Loans, Inc. |
| 2012 NY Slip Op 05251 [96 AD3d 684] |
| June 28, 2012 |
| Appellate Division, First Department |
| Walnut Place LLC et al., Appellants, v Countrywide HomeLoans, Inc., et al., Respondents, et al., Nominal Defendant. |
—[*1] Goodwin Procter LLP, New York (Mark Holland of counsel), for Countrywide Home Loans,Inc., Park Granada LLC, Park Monaco Inc. and Park Sienna LLC., respondents. Wachtell, Lipton, Rosen & Katz, New York (Theodore N. Mirvis of counsel), for Bank ofAmerica Corporation, respondent.
Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered on or aboutMarch 29, 2012, which, in this action alleging breach of representations and warranties made bydefendant sellers in pooling and service agreements (PSAs), granted defendants' motion todismiss the complaint, unanimously affirmed, with costs.
The court correctly held that plaintiff certificate holders' action is barred by the "no-action"clause in the PSAs, which plainly limits certificate holders' right to sue to an "Event of Default,"which, under section 7.01 of the PSAs, involves only the master servicer (cf. Sterling Fed.Bank, F.S.B. v DLJ Mtge. Capital, Inc., 2010 WL 3324705, *4, 2010 US Dist LEXIS 85771,*14 [ND Ill, Aug. 20, 2010, No. 09-C-6904]). Contrary to plaintiffs' contention, section 2.03 ofthe PSAs does not render the no-action clause ambiguous, nor does it permit plaintiffs' to bringthis action. That section merely provides for a remedy in the event of a breach, and does notreference or contemplate actions by certificate holders to achieve that remedy. Plaintiffs'argument that the "Event of Default" provision does not apply in this case is unavailing.Plaintiffs' interpretation of the "no-action" clause would improperly excise the "Event of Default"provision and distort the plain meaning of the clause (see Bailey v Fish & Neave, 8 NY3d 523, 528 [2007]). Nor areplaintiffs excused from complying with the "Event of Default" provision because of the allegedimpossibility of showing such an event. The "prevention/impossibility" doctrine, upon whichplaintiffs' argument relies, only applies, where, unlike here, nonperformance of a conditionprecedent was caused by the party insisting that the condition be satisfied (see EllenbergMorgan Corp. v Hard Rock Cafe Assoc., 116 AD2d 266, 271 [1986]).[*2]
We have considered plaintiffs' remaining arguments andfind them unavailing. Concur—Saxe, J.P., Friedman, Renwick, DeGrasse and Richter, JJ.[Prior Case History: 35 Misc 3d 1207(A), 2012 NY Slip Op 50601(U).]