Key International Manufacturing, Inc. v. Stillman , 103 A.D.2d 475 ( 1984 )

OPINION OF THE COURT

Titone, J. P.

This case involves a complex commercial transaction entered into by two sophisticated businessmen. At issue is the enforceability of an acceleration clause contained in the contract. We hold the plaintiff to the consequences of its bargain.

In 1981, appellant Stillman sold certain real property to plaintiff. Two million dollars of the total purchase price was deferred, on terms, until July 31, 1991. Stillman was given four $500,000 notes payable on that date, secured by means of letters of credit, to be drawn on by Stillman in the event of default in payment. Each note was to bear 6% per annum interest, payable on the first of each month.

It appears that while the notes had a 10-year duration, the letters of credit could be obtained for only a single year and would have to be renewed annually. The parties accordingly agreed that the letters of credit would expire on July 31 of each year and that plaintiff would obtain replacements on or before the preceding June 30, i.e., a full month before the expiration date. The agreement also provided that plaintiff was to have a 15-day grace period in which to cure any failure to deliver the new letters of credit and, in the event of such a default, Stillman could accelerate the due dates of all of the notes and receive payment of the accelerated debt by drawing on the expiring letters of credit before they lapsed. The notes bore such a legend and there was no requirement that Stillman give notice before he exercised that option.

In 1982, plaintiff failed to deliver the new letters of credit by the end of the contractual grace period. On July 19, therefore, Stillman presented the proper documentation to defendant Manufacturers Hanover Trust Company, the issuing bank, and the next day received four bank checks, each in the sum of $500,000, and indorsed these checks over to his broker in payment for his purchases of Treasury Bills. Before the checks cleared, however, plaintiff obtained an ex parte order preventing the bank from honoring them and commenced this action.

On cross motions, Special Term relieved plaintiff of its default under the contract, finding that Stillman had exploited “a technical breach relating to a pure collateral matter”. We disagree and reverse.

Acceleration clauses are quite common and are generally enforced according to their terms (e.g., Fifty States Mgt. Corp. v Pioneer Auto Parks, 46 NY2d 573, 577; Conditioner Leasing Corp. v Sternmor Realty Corp., 17 NY2d 1; see Mandel, The Preparation of Commercial Agreements [1978 ed], p 57). It is only “in rare cases” that the clause will be denied enforcement under equitable principles (Fifty States Mgt. Corp. v Pioneer Auto Parks, supra, p 577). As the Court of Appeals has noted, “[a]bsent some element of fraud, exploitive overreaching or unconscionable conduct * * * to exploit a technical breach, there is no warrant, either in law or equity, for a court to refuse enforcement of the agreement of the parties” (Fifty States Mgt. Corp. v Pioneer Auto Parks, supra, p 577).

This is not one of those “rare cases”. The parties are sophisticated entrepreneurs. Plaintiff does not claim that it was misled by Stillman or that it failed to take any action based upon representations made by him (cf. Abel v Paterno, 245 App Div 285, 291). Since the contract did not provide for notice, the fact that Stillman did not give notice is irrelevant (see Albertina Realty Co. v Rosbro Realty Corp., 258 NY 472, 475-476). Not having followed a leading commentator’s blunt advice “never” to enter into a contract containing an acceleration clause “without adding a provision requiring prior written notice of default and opportunity to cure the default within a stated grace period” lest “an unintentional default * * * prove disastrous” (Mandel, op. cit., p 57; emphasis supplied), plaintiff is hardly in a position to urge that its absence warrants a modification of the parties’ bargained for agreement. This is particularly so here as Stillman made a substantial financial commitment in reliance upon the acceleration provision (see First Nat. Stores v Yellowstone Shopping Center, 21 NY2d 630, 637-638) and the plaintiff has suffered no forfeiture (Albertina Realty Co. v Rosbro Realty Corp., supra; see, also, Ferlazzo v Riley, 278 NY 289, 292).

Nor can plaintiff’s breach be viewed as trivial or inconsequential. The obligation to make timely replacement of the letters of credit was an essential component of the agreement and the acceleration provision was the subject of extensive give and take negotiations. It was obviously designed to protect Stillman by giving him a sufficient period of time to draw on the expiring letters of credit in the event of a default. Furthermore, it has been held that the doctrine of insubstantial or de minimis default has no application in measuring performance of the terms of commercial paper (Stream v CBK Agronomics, 79 Misc 2d 607, 609, mod on other grounds 48 AD2d 637).

We simply cannot accept Special Term’s suggestion that holding the plaintiff to the consequences of its bargain constitutes an “oppressive result”. Payment in accordance with contractual terms, in and of itself, does not constitute an injustice (Brainerd Mfg. Co. v Dewey Garden Lanes, 78 AD2d 365, 367, app dsmd 53 NY2d 701). As we noted in McVey v Simone (73 AD2d 959, 960), equity may not “reach out to find that a party has substantially complied with the terms of an option clause when he has not, or to rewrite the clause to suit one of the parties. A failure of the magnitude of this plaintiff’s is only venial if the other party to the contract is willing to forgive it. While, by its nature, equitable right must always depend upon the facts of a particular case, under the circumstances here prevailing the power of equity should not intervene. Substantial noncompliance with the terms of an option clause cannot be rewarded by a judicial forgiveness that redounds to the detriment of the other party to the contract”.

That the result may be harsh to plaintiff is of no moment. “[A] court of equity may not relieve a defaulting debtor from the consequences of his act merely because the results are harsh” (Shell Oil Co. v McGraw, 48 AD2d 220, 222 [Simons, J.], app dsmd 40 NY2d 918 [also enforcing an acceleration clause]). Sympathy cannot be permitted to undermine the stability of contractual obligations (First Nat. Stores v Yellowstone Shopping Center, 21 NY2d 630, 637-638, supra; Jamaica Sav. Bank v Cohan, 36 AD2d 743, 744).

Moreover, it would appear that plaintiff’s efforts to obtain equitable relief came too late (cf. Naum v Naum Bros., 90 AD2d 960, mot for lv to app den 58 NY2d 606; Colonie Block & Supply Co. v Overmyer Co., 35 AD2d 897; General Acceptance Corp. v Masmo, Inc., 33 AD2d 57). Stillman had already exercised his right to accelerate and, therefore, “absent a showing of fraud, mutual mistake or other acceptable basis of reformation” Special Term was without power to read into the agreement that plaintiff had additional time to cure its default and rescind Stillman’s option to accelerate (First Nat. Stores v Yellowstone Shopping Center, 21 NY2d 630, 637, supra; see First Commercial Bank v Gotham Originals, 101 AD2d 790, 791; Mann Theatres Corp. v Mid-Island Shopping Plaza Co., 94 AD2d 466, 475-477, affd 62 NY2d 930).

Finally, we would also note that it was improper for Special Term to have restrained the bank from paying the proceeds of its cashier’s checks. Such a check is the primary obligation of the bank and is accepted upon its issuance (Dziurak v Chase Manhattan Bank, 44 NY2d 776, 777). Thus, pursuant to section 4-303 (subd [1], par [a]) of the Uniform Commercial Code, legal process cannot terminate a bank’s duty to pay such an instrument (Florida Frozen Foods v National Bank & Trust Co., 81 AD2d 978, 979, mot for lv to app den 55 NY2d 601; Kaufman v Chase Manhattan Bank, 370 F Supp 276, 278; see, also, First Commercial Bank v Gotham Originals, 101 AD2d 790, supra). Indeed, we cannot perceive why the bank has failed to object to the imposition of restraint.

Similarly, inasmuch as the only damage to the plaintiff was monetary and no fraud was involved, there would have been no basis to enjoin payment of the letters of credit (Uniform Commercial Code, § 5-114; Sperry Int. Trade v Government of Israel, 670 F2d 8; KMW Int. v Chase Manhattan Bank, 606 F2d 10; Fertico Belgium, S.A. v Phosphate Chems. Export Assn., 100 AD2d 165; Mount Carmel Energy Corp. v Marine Midland Bank, 82 AD2d 729; Foreign Venture Ltd. Partnership v Chemical Bank, 59 AD2d 352; cf. United Bank v Cambridge Sporting Goods Corp., 41 NY2d 254). Equitable relief, therefore, would be inappropriate.

For the reasons stated, the order should be reversed insofar as appealed from, on the law, plaintiff’s motion for summary judgment should be denied, defendant Stillman’s cross motion for summary judgment granted, defendant Manufacturers Hanover Trust Company’s motion to dismiss defendant Stillman’s cross claim against it denied and it should be declared that plaintiff is in default under the subject notes and that defendant Stillman is entitled to receive payments under the four letters of credit.