Bank of New York Mellon Trust Co. v. Morgan Stanley Mortgage Capital, Inc.

In concluding that a request to cure was not a condition precedent to Morgan Stanley’s repurchase obligation and that issues of fact preclude summary judgment, the majority opinion both misapplies New York law and misreads the plain language of the contract. The result is, in essence, judicial reformation of the agreement, saving a sophisticated party from the requirements of the bargain it made following arms-length negotiation. Because I cannot agree with these conclusions, I respectfully dissent.

*314It is indeed the case that New York law requires conditions precedent to be “express” — that…