On April 27, 2016, the Second Circuit Court of Appeals vacated and remanded the district court’s summary judgment order entered in favor of defendant Morgan Stanley Mortgage Capital, Inc. in the Southern District of New York.  Plaintiff Bank of New York Mellon Trust Company, N.A., as trustee of a CMBS deal, alleged that Morgan Stanley breached an environmental conditions contract representation, requiring Morgan Stanley to repurchase an $81 million mortgage loan.  The Second Circuit reversed the trial court’s conclusion that Morgan Stanley was not contractually obligated to repurchase the mortgage loan because the Trustee’s duty to give “notice of cure” within three business days of becoming aware of a material breach was a condition precedent to Morgan Stanley’s repurchase obligation.  The Second held that a request to cure a material breach was not a condition precedent under the contract.  In so holding, the Second Circuit distinguished between the Mortgage Loan Purchase Agreement’s separate obligations of “notice of breach” and “request to cure.”  As to the “request to cure” obligation, the Court found nothing that made it clear that Morgan Stanley’s remedy obligation does not arise until a request for cure is made.  The Court remanded the case to the trial court to reassess the timeliness of the Trustee’s notice for cure, which was a fact issue that must be presented to the factfinder at trial to determine when the Special Servicer concluded its investigation.  In addition, because request for cure is not a condition precedent, the jury would have to decide the question of substantial performance.  The Court held that a reasonable jury could find that, even if there was some delay in requesting cure, it could determine that substantial performance occurred. Decision.