26 A.D.3d 295
N.Y. App. Div.
2006

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v JORGE HERNANDEZ, Appellant.

Appellate Division of the Supreme Court of New York, First Department

April 8, 2004

810 NYS2d 329 | 27 A.D.3d 295

Judgment, Supreme Court, New York County (Charles Solomon, J., at plea and sentence), rendered on or about April 8, 2004, unanimously affirmed.

Application by appellant’s counsel to withdraw as counsel is granted (see Anders v California, 386 US 738 [1967]; People v Saunders, 52 AD2d 833 [1976]). We have reviewed this record and agree with appellant’s assigned counsel that there are no nonfrivolous points which could be raised on this appeal.

Pursuant to Criminal Procedure Law § 460.20, defendant may apply for leave to appeal to the Court of Appeals by making application to the Chief Judge of that Court and by submitting such application to the Clerk of that Court or to a Justice of the Appellate Division of the Supreme Court of this Department on reasonable notice to the respondent within 30 days after service of a copy of this order, with notice of entry.

Denial of the application for permission to appeal by the judge or justice first applied to is final and no new application may thereafter be made to any other judge or justice. Concur—Saxe, J.P., Marlow, Gonzalez, Catterson and McGuire, JJ.

Roan/Meyers Associates, L.P., Formerly Known as Janssen-Meyers Associates, L.P., Respondent, v CT Holdings, Inc., Formerly Known as Citadel Technology, Inc., Appellant, et al., Defendants. [810 NYS2d 67]

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered June 9, 2004, insofar as it granted plaintiff’s motion for summary judgment and awarded the principal sum of $3 million for breach of contract, and order, same court and Justice, entered January 25, 2005, which granted plaintiff’s motion for reargument and awarded prejudgment interest, unanimously affirmed, with costs.

Defendant CT Holdings repudiated its financial obligations under the parties’ settlement term sheet by its unequivocal communications indicating it was unable to perform those obligations by the contract deadline (see Computer Possibilities Unlimited v Mobil Oil Corp., 301 AD2d 70 [2002], lv denied 100 NY2d 504 [2003]). Contrary to CT Holdings’ contention, plaintiff did not fail to satisfy a condition precedent. A contractual duty ordinarily will not be construed as a condition precedent absent clear language that it was so intended (Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576, 581 [1992]). The language in Lindenbaum v Royco Prop. Corp. (165 AD2d 254, 259 [1991]), upon which CT Holdings relies, differs substantially from that in the term sheet.

We find prejudgment interest was properly awarded in the absence of any substantive argument in opposition to plaintiff’s motion to reargue or a showing by CT Holdings of a reasonable excuse and the merit of its position on its vacatur motion.

We have considered CT Holdings’ other contentions and find them unavailing. Concur—Saxe, J.P., Marlow, Gonzalez, Catterson and McGuire, JJ.