Opinion
2013-04-18
SAND CANYON CORPORATION, Plaintiff–Respondent, v. HOMEWARD RESIDENTIAL, INC., Defendant–Appellant.
Hunton & Williams LLP, New York (Brian V. Otero of counsel), for appellant. Cahill Gordon & Reindel LLP, New York (Joel Kurtzberg of counsel), for respondent.
Hunton & Williams LLP, New York (Brian V. Otero of counsel), for appellant. Cahill Gordon & Reindel LLP, New York (Joel Kurtzberg of counsel), for respondent.
ANDRIAS, J.P., ACOSTA, FREEDMAN, RICHTER, GISCHE, JJ.
Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered July 27, 2012, which denied defendant's motion to dismiss the complaint, unanimously modified, on the law, the motion granted as to the breach of contract claim based on the confidentiality provision and the claim for breach of the covenant of good faith and fair dealing, and otherwise affirmed, without costs.
Plaintiff alleges that defendant breached the cooperation provision of the parties' agreement by refusing to accede to its request that defendant not give potential plaintiffs greater access to loan information than is required by the pooling and servicing agreement (PSA). This raises a question of fact not appropriate for resolution on a motion to dismiss ( see Argentina v. Otsego Mut. Fire Ins. Co., 86 N.Y.2d 748, 750, 631 N.Y.S.2d 125, 655 N.E.2d 166 [1995] ). Moreover, it is not an actionable breach of the confidentiality provision of the agreement to give persons entitled to see the loan files a different means of access to those same files than is required by the PSA. Nor can we conclude as a matter of law that limiting access to loan information to business hours at defendant's offices, to which the parties expressly agreed in the PSA, so restricts investors' access to the courts as to be void as against public policy ( compare Lachman v. Sperry–Sun Well Surveying Co., 457 F.2d 850 [10th Cir.1972] ). The claim for violation of the covenant of good faith is based on the same facts as the claim for breach of the cooperation clause and is therefore duplicative thereof ( see Logan Advisors, LLC v. Patriarch Partners, LLC, 63 A.D.3d 440, 443, 879 N.Y.S.2d 463 [1st Dept. 2009] ). Plaintiff's assertion that defendant's breach of the cooperation agreement will subject it to numerous meritless claims and damage its reputation is sufficient to state irreparable harm ( see Biosynexus, Inc. v. Glaxo Group Ltd., 40 A.D.3d 384, 836 N.Y.S.2d 126 [1st Dept. 2007] ). Moreover, given the nature of the irreparable injury, we cannot conclude as a matter of law that the balance of the equities is against plaintiff.