Wells Fargo Bank Minnesota v. CD Video, Inc.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered July 9, 2004, which, inter alia, granted plaintiffs motion for summary judgment on its claims for breach of an [352] equipment lease and to enforce a personal guarantee, unanimously affirmed, with costs. Inasmuch as it is undisputed that plaintiff took the assignment of the subject equipment lease from the lessor in good faith and for value, and the lease absolutely and unconditionally obligated defendant lessee to pay the amounts due thereunder to an assignee of the lessor, plaintiff was not required to prove the lessor’s performance as a condition of enforcing the lessee’s obligation (see Wells Fargo Bank Minn. v BrooksAmerica Mtge. Corp., 2004 WL 2072358, 2004 US Dist LEXIS 18573 [SD NY 2004], affd 419 F3d 107 [2d Cir 2005]; In re O.P.M. Leasing Servs., Inc., 21 BR 993, 1005-1006 [SD NY 1982]). Moreover, defendant lessee’s express waiver of defenses barred it from asserting as against this plaintiff that its obligation under the lease had not commenced for failure of a condition precedent thereto (see Credit Alliance Corp. v David O. Crump Sand & Fill Co., 470 F Supp 489, 492 [SD NY 1979]), and in any event, defendant lessee was bound by its contrary written representation that the lessor had performed “fully and satisfactorily” (see Wells Fargo Bank Minn., N.A. v Nassau Broadcasting Partners, L.P., 2003 WL 22339299, 2003 US Dist LEXIS 18285 [SD NY 2003]). We have considered defendants’ remaining arguments and find them unavailing. Concur—Tom, J.P., Andrias, Sullivan, Gonzalez and Sweeny, JJ. [See 6 Misc 3d 1003(A), 2004 NY Slip Op 517070J) (2004).]