Opinion
No. 65.
March 17, 2009.
Order, Supreme Court, New York County (Helen E. Freedman, J.), entered January 8, 2008, which denied defendant Dynamic Credit Partners, LLC's motion to dismiss the complaint as against it for failure to state a cause of action, unanimously affirmed, with costs.
Scarola Ellis LLP, New York (Richard J.J. Scarola of counsel), for appellant.
Venable LLP, New York (Edward P. Boyle of counsel), for respondent.
Before: Mazzarelli, J.P., Andrias, Gonzalez, Moskowitz and Renwick, JJ.
Plaintiff's complaint as against Dynamic states a single cause of action for breach of the participation agreement to which Dynamic was a party. The complaint sets forth the existence of a valid contract, plaintiff's performance of its obligations there-under, Dynamic's breach by its failure to place sufficient capital in the South Beach Segregated Portfolio so that its affiliate, co-defendant ESE Funding SPC Ltd. (ESE), could meet its obligations under other parts of the participation agreement, and resulting damages in the amount of $3.2 million, the remaining one sixth of the risk contemplated by the agreement in the event of a decline in value of South Beach's assets ( see Morris v 702 E. Fifth St. HDFC, 46 AD3d 478, 479). That the amount of damages, if any, is not yet known due to a related action brought against plaintiff by ESE does not preclude the assertion of plaintiff's contract claim against Dynamic ( see AG Capital Funding Partners, L.P. v State St. Bank Trust Co., 5 NY3d 582, 591).