TSL (USA) Inc. v OppenheimerFunds, Inc.

TSL (USA) Inc. v OppenheimerFunds, Inc. 2014 NY Slip Op 00071 Decided on January 7, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 7, 2014
Sweeny, J.P., Acosta, Saxe, Moskowitz, Clark, JJ.
11433 600976/10

[*1]TSL (USA) Inc., et al., Plaintiffs-Appellants,

v

OppenheimerFunds, Inc., et al., Defendants-Respondents.




Kasowitz, Benson, Torres & Friedman LLP, New York (Aaron
H. Marks of counsel), for TSL (USA) Inc., appellant.
Phillips Lytle LLP, New York (Paul K. Stecker of counsel), for
Bryant Park Funding LLC and The Bank of Nova Scotia, New
York Agency, appellants.
Susman Godfrey L.L.P., New York (Stephen D. Susman of
counsel), for respondents.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered April 11, 2013, which granted defendants OppenheimerFunds, Inc. (Oppenheimer), Harbourview Asset Management Corporation (Harbourview), and AAArdvark IV Funding Limited's (AAArdvark) motion for summary judgment to the extent of dismissing, with prejudice, the fraud claims and dismissing, without prejudice, the breach of contract claims as premature, unanimously affirmed, with costs.

The motion court properly dismissed, without prejudice, the breach of contract claims as premature. Plaintiff's alleged damages the difference between the unpaid balance of the post-Amortization Event loans and the present value of the securities that AAArdvark purchased with those loans, which do not mature until 2018 —- are too speculative to determine at this juncture (see Kenford Co., Inc. v Erie County, 67 NY2d 257 [1986]; Lloyd v Town of Wheatfield, 67 NY2d 809 [1986]; Fruition, Inc. v Rhoda Lee, Inc., 1 AD3d 124 [1st Dept 2003]).

The motion court also properly dismissed the fraud claim as duplicative of the breach of contract claim. The fraud claim essentially alleges that Oppenheimer and Harbourview failed to carry out their contractual duties of apprising plaintiffs of an Amortization Event (see Sebastian [*2]Holdings, Inc. v Deutsche Bank AG., 78 AD3d 446, 447 [1st Dept 2010]).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 7, 2014

CLERK