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TALOS CAPITAL DESIGNATED ACTIVITY CO. v. 257 CHURCH HOLDINGS LLC

Index No. 651458/20. Appeal No. 15939-15939A. Case No. 2021-00295.

205 A.D.3d 509 (2022)

165 N.Y.S.3d 855

2022 NY Slip Op 03186

Talos Capital Designated Activity Company, Respondent, v. 257 Church Holdings LLC et al., Appellants.

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

Decided May 12, 2022.

Attorney(s) appearing for the Case

Nixon Peabody LLP, New York ( Thomas Mealiffe of counsel), for 257 Church Holdings LLC, BA 616 Collins Member LLC and Leeds Capital LLC, appellants.

Friedman Kaplan Seiler & Adelman LLP, New York ( Robert S. Smith of counsel), for Ben Ashkenazy, appellant.

Fried, Frank, Harris, Shriver & Jacobson LLP, New York ( Janice MacAvoy of counsel), for respondent.

Concur—Gische, J.P., Scarpulla, Mendez, Shulman, Higgitt, JJ.

Regardless of whether the Payment Recourse Guaranty executed by Ashkenazy is an instrument for the payment of money only as contemplated by CPLR 3213, to the extent it unconditionally guaranteed the nonparty borrower's obligation to pay a $20 million "Five Year Paydown" pursuant to a mezzanine loan agreement plaintiff failed to establish its entitlement to summary judgment against Ashkenazy. The underlying loan agreement and the...

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