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BDC FIN. LLC v. BARCLAYS BANK PLC

650375/08. Appeal No. 15013-15014. Case Nos. 2021-00037, 2021-00045, 2021-01938.

201 A.D.3d 458 (2022)

156 N.Y.S.3d 841

2022 NY Slip Op 00117

BDC Finance LLC, Appellant, v. Barclays Bank PLC, Respondent.

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

Decided January 11, 2022.

Attorney(s) appearing for the Case

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.

Concur—Renwick, J.P., Kapnick, Moulton, Kennedy, Scarpulla, JJ.

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 A.D.3d 527 [1st Dept 2019]). Thus, we remand the matter for a trial of whether the calculation...

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