Opinion
2012-02-16
BASE VILLAGE OWNER LLC, Plaintiff–Appellant–Respondent, v. HYPO REAL ESTATE CAPITAL CORPORATION, et al., Defendants–Respondents–Appellants.
Katsky Korins LLP, New York (Adrienne B. Koch of counsel), for appellant-respondent. Cooley LLP, New York (Celia Goldwag Barenholtz of counsel), for respondents-appellants.
Katsky Korins LLP, New York (Adrienne B. Koch of counsel), for appellant-respondent. Cooley LLP, New York (Celia Goldwag Barenholtz of counsel), for respondents-appellants.
FRIEDMAN, J.P., SWEENY, RENWICK, DeGRASSE, ROMÁN, JJ.
Orders, Supreme Court, New York County (Charles E. Ramos, J.), entered February 9, 2011, which granted defendants' motion to dismiss the cause of action seeking damages for breach of contract and denied the motion with respect to the causes of action for injunctive and declaratory relief, unanimously modified, on the law, to the extent of dismissing the causes of action for declaratory judgment and injunctive relief, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint.
The limitation of remedies provision in the parties' loan agreement was properly construed as clearly, explicitly and unambiguously barring plaintiff's claim for damages based on allegations that defendants' agent unreasonably withheld or delayed approval of the documentation upon which defendants' obligation to extend the loan was conditioned ( see e.g. L.K. Sta. Group, LLC v. Quantek Media, LLC, 62 A.D.3d 487, 493, 879 N.Y.S.2d 112 [2009] ). In light of defendants' alleged economic self-interest, the provision was not rendered ineffective by allegations of misconduct that “smack” of intentional wrongdoing or willful, malicious or bad faith conduct ( see Metropolitan Life Ins. Co. v. Noble Lowndes Intl., 84 N.Y.2d 430, 438–439, 618 N.Y.S.2d 882, 643 N.E.2d 504 [1994]; see also e.g. Diplomat Props., L.P. v. Komar Five Assoc., LLC, 72 A.D.3d 596, 597–598, 899 N.Y.S.2d 237 [2010], lv. denied 15 N.Y.3d 706, 2010 WL 3547599 [2010] ).
However, the claim for declaratory judgment relief based on defendants' alleged defaults should have been dismissed based upon the provision stating that plaintiff's obligation to make payment on its loan debt was independent of defendants' performance of their obligations ( see Rosenthal Paper Co. v. National Folding Box & Paper Co., 226 N.Y. 313, 319–320, 123 N.E. 766 [1919] ). Because we need not reach the merits of the declaratory judgment claim (i.e., whether the defendants were in default), dismissal of the claim, rather than a declaration in favor of defendants, is appropriate ( see Maurizzio v. Lumbermens Mut. Cas. Co., 73 N.Y.2d 951, 954, 540 N.Y.S.2d 982, 538 N.E.2d 334 [1989]; Matter of Powell v. Town of Coeymans, 238 A.D.2d 788, 789, 656 N.Y.S.2d 460 [1997] ). As to the claim for injunctive relief as the parties stated at oral argument, it is moot since foreclosure has taken place.
We have considered the parties' other contentions and find them unavailing.