Opinion
8867 Index 655257/17
04-02-2019
CHURCHILL REAL ESTATE HOLDINGS LLC, Plaintiff–Appellant, v. CBCS WASHINGTON STREET LP, et al., Defendants–Respondents.
Morrison Cohen LLP, New York (Y. David Scharf of counsel), for appellant. Law Office of Steven Cohn, P.C., Carle Place (Steven Cohn of counsel), for respondents.
Morrison Cohen LLP, New York (Y. David Scharf of counsel), for appellant.
Law Office of Steven Cohn, P.C., Carle Place (Steven Cohn of counsel), for respondents.
Friedman, J.P., Gische, Tom, Gesmer, Moulton, JJ.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered June 15, 2018, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment as to liability, and granted defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant plaintiff's motion as to liability on its breach of contract claim and deny defendants' motion as to that claim, and otherwise affirmed, without costs.
While the parties were not obligated to enter into a loan, the "Break–Up Fee" and "Miscellaneous" provisions of their agreement, which obligated defendant lenders to pay a termination fee, costs, and legal fees, even if no loan closed, were expressly made binding, and therefore must be given force (see Beal Sav. Bank v. Sommer , 8 N.Y.3d 318, 324–25, 834 N.Y.S.2d 44, 865 N.E.2d 1210 [2007] ).Contrary to defendants' contention, the doctrine of contra proferentem is inapplicable here, because the language of the agreement is unambiguous (see 327 Realty, LLC v. Nextel of N.Y., Inc. , 150 A.D.3d 581, 582, 55 N.Y.S.3d 202 [1st Dept. 2017] ), and because the parties are sophisticated (see Westchester Fire Ins. Co. v. MCI Communications Corp. , 74 A.D.3d 551, 902 N.Y.S.2d 350 [1st Dept. 2010] ).
The claim for breach of the covenant of good faith and fair dealing is duplicative of the breach of contract claim (see Mill Fin., LLC v. Gillett , 122 A.D.3d 98, 104, 992 N.Y.S.2d 20 [1st Dept. 2014] ). Further, because the loan transaction was entirely contingent, defendants did not breach the covenant by failing to enter into a loan (see Moran v. Erk , 11 N.Y.3d 452, 456–457, 872 N.Y.S.2d 696, 901 N.E.2d 187 [2008] ).
The claim for unjust enrichment is barred by the existence of an express agreement governing the subject matter (see Cox v. NAP Constr. Co., Inc. , 10 N.Y.3d 592, 607, 861 N.Y.S.2d 238, 891 N.E.2d 271 [2008] ). In any event, defendants were allegedly "enriched" not by plaintiff but by a third party (see IDT Corp. v. Morgan Stanley Dean Witter & Co. , 12 N.Y.3d 132, 142, 879 N.Y.S.2d 355, 907 N.E.2d 268 [2009] ).