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DESTINY v. CITIGROUP GLOBAL

1136.2 CA 09-01520

69 A.D.3d 212 (2009)

889 N.Y.S.2d 793

DESTINY USA HOLDINGS, LLC, Respondent, v. CITIGROUP GLOBAL MARKETS REALTY CORP., Appellant.

Appellate Division of the Supreme Court of New York, Fourth Department.

Decided November 13, 2009.

Attorney(s) appearing for the Case

Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York City (Leslie G. Fagen of counsel), and Hancock & Estabrook, LLP, Syracuse, for appellant.

Dickstein Shapiro LLP, New York City (Howard Graff of counsel), and Gilberti Stinziano Heintz & Smith, P.C., Syracuse, for respondent.

HURLBUTT, J.P., and PERADOTTO, J., concur with PINE, J.; FAHEY and GREEN, JJ., dissent in a separate opinion by FAHEY, J.

OPINION OF THE COURT

PINE, J.

The primary issue on this appeal is whether plaintiff, Destiny USA Holdings, LLC (Destiny Holdings), is entitled to a preliminary injunction requiring defendant, Citigroup Global Markets Realty Corp. (Citigroup), to fund "pending draw requests" on a loan structured as "an advancing term loan." Citigroup contends that such relief is not available because the action is one for breach...

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