W2007 Monday 230 Park Mezz II, LLC v Landesbank Baden-Wuerttemberg

[*1] W2007 Monday 230 Park Mezz II, LLC v Landesbank Baden-Wuerttemberg 2013 NY Slip Op 50031(U) Decided on January 10, 2013 Supreme Court, New York County Sherwood, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 10, 2013
Supreme Court, New York County

W2007 Monday 230 Park Mezz II, LLC, Plaintiff,

against

Landesbank Baden-Wuerttemberg, Defendant,



653492/2011

O. Peter Sherwood, J.

This is an action by plaintiff, W2007 Monday 230 Park Mezz II, LLC ("W2007 Monday"), to recover $4,788,000, plus interest and attorneys' fees it claims it was wrongfully forced by Defendant, Landesbank Baden-Wuerttemberg ("LBBW"), to pay under protest on the eve of a real estate closing involving a property located at 230 Park Avenue. The property was encumbered by several loans, including a mezzanine loan (the "Loan") governed by a written Loan Agreement, dated as of November 9, 2005 (the "Loan Agreement"). W2007 Monday also seeks a declaratory judgment that the Loan Agreement did not entitle LBBW to the forced payment.

Before the court is LBBW's motion to dismiss, pursuant to CPLR § 3211 (a) (1) and (7), on the grounds that plaintiff's claims are barred by the language of the Loan Agreement, particularly section 2.4.1 which provides that plaintiff, as Borrower, was responsible for all of the Lender's costs and expenses, including reasonable attorneys' fees, incurred by the Lender in connection with prepayment of the Loan, or, alternatively, dismissing, pursuant to CPLR § 3211 (a) (7), the second through fifth causes of action as duplicative of the first cause of action for breach of contract.

W2007 Monday, opposes the motion on the ground that under the terms of the Loan Agreement, LBBW was entitled only to costs and expenses incurred in connection with prepayment of the Loan and any swap breakage fees incurred by LBBW were incurred in connection with separate swap agreements with Bank of America and Canadian Imperial Bank of Commerce ("CIBC") that were not made part of the Loan Agreement.

II.BACKGROUND

On a motion to dismiss the relevant facts, as derived from the complaint, are accepted as true. On or about December 24, 2007, plaintiff, W2007 Monday, in connection with the purchase of 230 Park Avenue, New York, New York, New York (the "Property"), assumed an existing mortgage and mezzanine loans encumbering the Property in December 2007. One such loan, which is at issue here, was "Mezzanine Loan B", dated as of March 20, 2006, pursuant to which plaintiff's predecessor was advanced the sum of $155 million at a fixed interest of 6.5% (Lively Aff., Ex. "A", [*2]Complaint ¶¶ 8-9). As of April 7, 2006, prior to plaintiff's assumption of the Loan, LBBW acquired a participation interest in the Loan and, thereby, became a party to the Loan Agreement (id. ¶ 10).

The Loan Agreement permitted the Borrower to prepay the Loan voluntarily (id. ¶ 11), by paying a prepayment premium consisting of "an amount equal to two percent (2%) of the then-outstanding principal balance of the Loan" for any prepayment made between December 2010 and November 2011" (id. ¶ 12; Lively Aff. Ex. "B", §§ 1.1, p. 16, 2.4.1 (c), p. 28). The complaint alleges that "[t]he purpose of the Prepayment Premium was to fix, in advance, the amount the lender would be entitled to receive, and the borrower would be required to pay, should the borrower elect to prepay the loan before maturity" (id. ¶ 13).

In addition to paying the Prepayment Premium, the Loan Agreement also provides that the Borrower is required to pay "all of Lender's costs and expenses (including attorney's fees and disbursements) incurred by Lender in connection with such prepayment" (id. ¶ 14, Lively Aff. Ex. "B", § 2.4.1 (b). The complaint alleges that "[s]uch provisions are common features of commercial real estate loan agreements, and are intended to reimburse the lender for out-of-pocket costs such as attorney's fees, title searches, copying costs, and other administrative expenses specifically and directly related to a prepayment." (Complaint ¶ 14).

Plaintiff alleges that on or about May 5, 2011, an affiliate of W2007 Monday agreed to sell the Property to a third party. In connection therewith and as required by the Loan Agreement, on May 12, 2011, W2007 Monday sent notice to KeyBank, the servicer of the Loan, of its intent to prepay the Loan (id. ¶¶ 15-16). KeyBank in an attachment to an e-mail dated June 3, 2011, notified LBBW of plaintiff's election to prepay (Lively Aff. Ex. "I"). Plaintiff alleges that on or about June 6, 2011, KeyBank issued a payoff letter containing the aggregate amount due from W2007 Monday to satisfy its obligation in full and alleges further that because the purchaser of the Property adjourned the closing from June 8, 2011 to June 9, 2011, plaintiff requested an updated payoff letter from KeyBank (id. Ex. "A", Complaint ¶ 17).

On June 8, 2011, KeyBank contacted plaintiff to advise that LBBW would not accept prepayment of the Loan unless it received in addition to the prepayment premium: (1) legal fees of $8,700; (2) administration fees of $500.00; and (3) $4,788,000.00 in costs LBBW was required to pay to terminate its interest rate swap agreements relating to the Loan ("swap breakage fees") (Lively Aff. Ex. "L"). The interest rate swap agreements were entered into on or before April 26, 2006.

Although W2007 Monday contends that it was never told that LBBW had entered into swap agreements in connection with the Loan and had never agreed to pay any "swap breakage fees" in connection with a voluntary prepayment, it paid LBBW the $4,788,000.00 fee under protest and with a full reservation of right to challenge the payment claiming that it "had no choice but to pay this amount" as prepayment of the Loan was a condition of the sale of the Property. Plaintiff contends that none of the other lenders required such payments and that it has repeatedly asked LBBW to return the $4,788,000.00, but LBBW has refused to return the funds (id. Ex. "A", ¶¶ 21-28).

On December 15, 2011, W2007 Monday commenced this action by filing a summons and complaint alleging five causes of action, namely: breach of contract (First Cause of Action), breach of implied covenant of good faith and fair dealing (Second Cause of Action), money had and received (Third Cause of Action), unjust enrichment (Fourth Cause of Action), and declaratory judgment (Fifth Cause of Action). Plaintiff seeks damages and/or restitution of $4,788,000.00, plus [*3]pre-judgment interest of 9% per annum, attorneys' fees, compensatory, incidental and consequential damages in an amount to be determined at trial, and a declaration that LBBW's demand for payment of $4,788,000.00 over and above the prepayment premium has no basis in the Loan Agreement.

III.DISCUSSION

A. Standard CPLR § 3211 (a) (1)

To succeed on a motion to dismiss, pursuant to CPLR § 3211 (a) (1), the documentary evidence submitted that forms the basis of a defense must resolve all factual issues and definitively dispose of the plaintiff's claims (see, 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; Blonder & Co., Inc. v Citibank, N.A., 28 AD3d 180 [1st Dept 2006]). A motion to dismiss pursuant to CPLR § 3211 (a) (1) "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law [citation omitted]" (McCully v. Jersey Partners, Inc., 60 AD3d 562, 562 [1st Dept. 2009]).

CPLR § 3211 (a) (1) does not explicitly define "documentary evidence." As used in this statutory provision, " documentary evidence' is a fuzzy term', and what is documentary evidence for one purpose, might not be documentary evidence for another" (Fontanetta v John Doe 1, 73 AD3d 78, 84 [2d Dept 2010]). "[T]o be considered documentary,' evidence must be unambiguous and of undisputed authenticity" (id. at 86, citing Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR 3211:10, at 21-22). Typically that means judicial records such as judgments and orders, as well as documents reflecting out-of-court transactions such as contracts, releases, deeds, wills, mortgages and any other papers, "the contents of which are essentially undeniable'" (id. at 84-85).

B. Standard CPLR § 3211 (a) (7)

On a motion to dismiss a plaintiff's claim pursuant to CPLR § 3211 (a) (7) for failure to state a cause of action, the court is not called upon to determine the truth of the allegations (see, Campaign for Fiscal Equity v State, 86 NY2d 307, 317 [1995]; 219 Broadway Corp. v Alexander's, Inc., 46 NY2d 506, 509 [1979]).Rather, the court is required to "afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference [citation omitted]. Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC I v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). The court's role is limited to determining whether the pleading states a cause of action, not whether there is evidentiary support to establish a meritorious cause of action (see, Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Sokol v Leader, 74 AD3d 1180 [2d Dept 2010]).

While affidavits may be considered on a motion to dismiss for failure to state a cause of action, unless the motion is converted to a 3212 motion for summary judgment the court will not consider them for the purpose of determining whether there is evidentiary support for properly pleaded claims, but, instead, will accept such submissions from a plaintiff for the limited purpose of remedying pleading defects in the complaint (see Nonnon v City of New York, 9 NY3d 825, 827 [2007]; Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]). Affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 "unless they establish conclusively that [plaintiff] has no * * * cause of action" (Lawrence v Miller, 11 NY3d 588, 595 [2008], citing Rovello v Orofino Realty Co., 40 NY2d supra at 636). In this posture, the lack of an affidavit by [*4]someone with knowledge of the facts will not necessarily serve as a basis for denial of a motion to dismiss.

C. Breach of Contract (First Cause of Action)

To sustain a breach of contract cause of action in New York, plaintiffs must allege facts showing each of the following elements: (1) an agreement; (2) plaintiff's performance; (3) defendant's breach of that agreement; and (4) damages sustained by plaintiff as a result of the breach (see Kraus v Visa Intl Serv Assn, 304 AD2d 408 [1st Dept 2003;] Furia v Furia, 116 AD2d 694, 695 [2d Dept 1986]). "As a general rule, contracts remain separate unless the history and subject matter shows them to be unified'" (National Union Fire Ins. Co. of Pittsburgh, Pa. v Williams, 223 AD2d 395, 396 [1st Dept 1996, quoting Ripley v International Rys. of Cent. Am., 8 NY2d 430, 438 [1960])."The fundamental rule of contract interpretation is that agreements are construed in accord with the parties' intent . . . and [t]he best evidence of what parties to a written agreement intend is what they say in their writing' . . . Thus, a written agreement that is clear and unambiguous on its face must be enforced according to the plain terms, and extrinsic evidence of the parties' intent may be considered only if the agreement is ambiguous [internal citations omitted]" (Riverside South Planning Corp. v CRP/Extell Riverside LP, 60 AD3d 61, 66 [1st Dept 2008], affd 13 NY3d 398 [2009]). Whether a contract is ambiguous presents a question of law for resolution by the courts (id. at 67).

In accordance with these principles, a court should interpret a contract "so as to give full meaning and effect to the material provisions" (Beal Savings Bank v Sommer, 8 NY3d 318, 324 [2007], quoting Excess Ins. Co. Ltd. v Factory Mut. Ins. Co., 3 NY3d 577, 582 [2004]). "A reading of a contract should not render any portion meaningless. . . Further , a contract should be read as a whole, and every part will be interpreted with reference to the whole; and if possible it will be so interpreted as to give effect to its general purpose'" (id. at 324-325, quoting Matter of Westmoreland Coal Co. v Entech, Inc., 100 NY2d 352, 358 [2003]). When a contract is negotiated between sophisticated business entities negotiating at arm's length, "courts should be extremely reluctant to interpret an agreement as impliedly stating something which the parties have neglected to specifically include" (Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004] [internal quotation omitted]).

Here, each side suggests a different plain meaning of the phrase "all of all of Lender's costs and expenses (including reasonable attorney's fees and disbursements) incurred by Lender in connection with such prepayment" as used in the applicable section 2.4.1 of the Loan Agreement. The existence of a disagreement about the plain meaning of words does not necessarily render those words ambiguous for purposes of interpreting a contract (see Rosenthal v Quadriga Art, Inc., 69 AD3d 504, 506-507 [1st Dept 2010]). Rather, as previously indicated, the contract must be read as a whole and the Court must determine the subject words' intended meaning by considering their use in context (id.).

Defendant argues that the plain unambiguous language of the Loan Agreement renders plaintiff responsible for all of the costs and expenses it incurred in connection with plaintiff's prepayment of the Loan. Defendant maintains that plaintiff's contention that the existence of the prepayment premium in the Loan Agreement evidences the parties' intent to fix in advance the amount lender would be entitled to receive and borrower would be obligated to pay should the borrower elect to prepay the Loan before maturity is flatly refuted by section 2.4.1 of the Loan [*5]Agreement. Defendant avers that if the parties had so intended they would have included language to that effect in the Loan Agreement. That section provides:

Voluntary Prepayments.Except for scheduled amortization and as

provided herein, Borrower shall not have the right to prepay the Loan

in whole or in part prior to the Maturity Date. On any Payment Date

from and including the Payment Date occurring in December, 2010,

Borrower may, at its option and upon thirty (30) days' prior notice to

Lender, prepay the Debt in whole but not in part provided that such

prepayment is accompanied by (a) all interest which would have

accrued on the Loan through and including the last day of the Interest

Period immediately prior to such Payment Date; (b) all other sums

due and payable under this Agreement, the Note, and the other Loan

Documents, and all of Lender's costs and expenses (including

reasonable attorney's fees and disbursements) incurred by Lender

in connection with such prepayment; and (c) the applicable

Prepayment Premium. Lender shall not be obligated to accept any

prepayment of the Debt under this Section 2.4.1 unless it is

accompanied by the Prepayment Premium, if any, due in connection

therewith. On the Payment Date three (3) months prior to the Maturity

Date, or on any Payment Date thereafter, Borrower may, at its option

and upon thirty (30) days' prior notice to Lender, prepay the Debt in

whole or in part without payment of any Prepayment Premium.

Defendant also notes that where the parties intended "costs and expenses" to be limited to "out-of-pocket costs", they specifically incorporated qualifying language to the effect demonstrating such an intent (citing §§ 2.5.1 (i) & (xi); 2.5.3; 3.1.12; 5.1.8; 5.1.13; 5.1.14; and 10.13 (a) of the Loan Agreement). Defendant points out that section 2.4.1 (b) contains no such qualifying language but requires that the Borrower reimburse the Lender for all of the Lender's costs and expenses incurred in connection with prepayment, regardless of whether or not such costs incurred were out-of-pocket. Notwithstanding the lack of such qualifying language in section 2.4.1 (b), defendant maintains that it incurred out-of-pocket cash payments aggregating $4,788,000.00 in respect to breaking of the swap contracts. Thus, the court should reject plaintiff's interpretation of the contract language to mean that it was responsible only for minor administrative costs, rather than all costs incurred as a result of prepayment of the Loan.

Defendant states that in order to provide plaintiff with a fixed rate loan and given the expansive reimbursement obligation set forth in section 2.4.1 (b), both it and non-party LRP Landesbank Rheinland Pfalz Girozentrale, Mainz ("LRP") entered into interest rate swap agreements on April 26, 2007. Defendant did so with Bank of America as counterparty at a floating rate equal to one-month London Interbank Offered Rate ("30-day LIBOR") plus 1.5 %, for a term ending 11/12/2012 (see Lively Aff. Ex. "H"); and LRP with Canadian Imperial Bank as counterparty, at a floating rate equal to 30-Day LIBOR plus 1.4%, for a term ending November 13, 2012 (Defendants' Memo of Law, p. 9). The swap counterparties stood to make vast profits over the remaining life of the swap agreements had they not been prematurely terminated by plaintiff's prepayment of the Loan. [*6]Defendant contends that neither the Lender nor the Borrowers could have anticipated in 2006, when the Loan was entered into, the unprecedented, near zero interest rates prevailing at the time the Loan was prematurely terminated. The fact that defendant's costs were unpredictably high should not excuse plaintiff's obligation to pay them. Moreover, plaintiff derived an enormous benefit by getting out of a 6.58% loan in a near-zero interest rate environment a year and a half before the November 2012 maturity date. Defendant claims that plaintiff, as a sophisticated party, understood that a Lender, which at borrowers' request enter into a fixed rate loan, incurs a cost in accommodating such request. Defendant contends that plaintiff is controlled by Whitehall Funds, a division of Goldman Sachs, and that Goldman Sachs frequently entered into swaps as a counterparty and therefore knows full well that such interest rates swaps come with high termination costs in a low interest rate environment. Certainly, plaintiff should have inquired about the cost of breaking the swaps before it committed to the sale of the property. Having failed to do so, it cannot now complain that the costs are too high.

Plaintiff opposes the motion to dismiss by claiming that it states a cause of action for breach of contract based upon the four corners of the Loan Agreement. Plaintiff contends that the plain language of Section 2.4.1 of the Loan Agreement directly refutes LBBW's arguments. Plaintiff claims that any swap breakage costs LBBW incurred were not incurred in connection with prepayment of the Loan, but rather were in connection with LBBW's separate swap agreements and that LBBW offers no evidence that the Loan Agreement and the separate swap agreements should be construed together.

Indeed, plaintiff contends (and LBBW does not dispute) that LBBW never disclosed to plaintiff that it was likely to or had entered swap agreements. Moreover, the Loan Agreement makes no mention of the swap agreements or swap breakage fees nor does the definition of "Loan" therein or "Loan Agreement" include the swap agreements among the listed Loan documents. Plaintiff argues that if the parties had intended to include the recovery of swap breakage fees as part of the Loan provisions, such a term should have been included in the Loan Agreement and was not.

Plaintiff contends further that to construe the Loan Agreement in the manner urged by LBBW would produce "absurd or commercially unreasonable results" (Plaintiff's Memo of Law in Opposition, p. 13). Specifically, plaintiff argues that to include within the costs and expenses of prepayment the swap breakage fees would make it impossible for the borrower to prepay the loan because the borrower could not know how much the prepayment cost would be until it tendered its notice of prepayment. Thus, plaintiff contends that any sensible business person would not enter into such an agreement where the risk was unknown, unpredictable and beyond its control (id. pp. 13-14). Plaintiff also points to LBBW's own swap brokerage costs for two similar interest rate swaps - to wit, that LBBW's 65% interest in the Loan accounted for 96% of its total breakage costs, while the remaining 35% of its interest accounted for just 4% of LBBW's breakage costs, demonstrating that such costs are unpredictable and cannot be estimated by reasonable business people.

In reply, defendant asserts that plaintiff's contention that it cannot be held responsible for defendant's swap breakage costs because it was not a party to the swap agreements is contradicted by plaintiff's concession that it is liable for the categories of costs specified under Section 2.4.1. Defendant contends that such costs, to wit, attorneys' fees, title searches, copying costs or outsourced administrative costs necessarily arise from and are governed by third party agreements.

Moreover, defendant contends that all it was required to do under Section 2.4.1 was to [*7]demonstrate that it incurred costs in connection with plaintiff's prepayment of the Loan and that it has done so on this motion, namely with documentation that it and its affiliate were billed and paid swap breakage costs of $4,788,000.00 in connection with the swaps purchased for the Loan.

Defendant also disputes plaintiff's claim that it had no choice but to pay LBBW the demanded reimbursement for swap breakage fees. Defendant points out that plaintiff did not have to sell the property. Moreover, the decision to prepay the Loan was voluntary. Indeed, defendant observes that plaintiff has not produced any proof that it had even entered into a binding agreement to sell the property. Defendant also disputes plaintiff's claim that it could not complete the sale without paying off LBBW as, unlike the mortgage lender, LBBW did not hold a mortgage or lien against the property so that plaintiff could have paid off the Loan and required the mortgage lender to release its lien on the property so that plaintiff could convey it to the buyer.

Lastly, defendant contends that the real reason for plaintiff's objection to paying the swap breakage fees is because the amount is large, but such fact does not render the result absurd or commercially unreasonable, especially since the magnitude of the costs was "driven by the unprecedented near-zero interest rate prevailing when the sale transaction took place" (Defendant's Reply Memorandum of Law, p. 11).

It is not disputed that the Loan Agreement (dated as of November 9, 2005) was not executed contemporaneously with the swap agreements (dated in April of 2006) and neither plaintiff nor defendant participated in negotiation of the Loan Agreement. Under the definitions section of the Loan Agreement, "Loan" was defined as "the Loan made by the Lender to Borrower pursuant to this Agreement" (Lively Aff. Ex. "B", Loan Agreement, p. 9). "Loan Documents" are defined as "this Agreement, the Note, the Pledge Agreement, The Environmental Indemnity, the O & M Agreement[FN1], the Subordination of Management Agreement, the Guaranty, the Cash Management Agreement and all other documents executed and/or delivered in connection with the Loan." (Id.). No mention is made of the swap agreements nor is there any indication that the original parties to the Loan Agreement ever contemplated expenses associated with swap breakage costs. Plaintiff was not a party to the swap agreements and the swap agreements were not executed until long after the Loan Agreement was signed. The swap agreements appear to relate to transactions that are separate and apart from the Loan Agreement (see, generally Gulf Island Leasing, Inc. v Bombardier, Inc., 2006 WL 314523 [SDNY 2006][holding lender's swap breakage fees not recoverable under provision of loan agreements requiring borrower to indemnify lender "from and against any and all claims, losses and liabilities growing out of or resulting from" various loan documents]; see also In re Spiegel, 2005 WL 440321 [U.S. Bankruptcy Ct, SDNY, 2005]). Thus, it cannot be said that pursuant to CPLR 3211(a)(1), "the documentary evidence conclusively resolves all factual issues and plaintiff's claims fail as a matter of law" (see Robinson v Robinson, 303 AD2d 234, 235 [1st Dept 2003]) or "utterly refutes plaintiff's factual allegations, conclusively establishing a defense [to the breach of contract cause of action] as a matter of law [citation omitted]" (McCully v. Jersey Partners, Inc., 60 AD3d at 562). In addition, viewing the allegations of the complaint in a light most favorable to plaintiff, the breach of contract cause of action is stated sufficiently to withstand a motion to dismiss.

D. Second Through Fifth Causes of Action [*8]

Defendant contends that the second through fifth causes of action seek to recover the same damages arising from breach of the Loan Agreement. Specifically, defendant contends that the existence of a written contract precludes recovery on a cause of action for unjust enrichment (Fourth Cause of Action) or for money had and received (Third Cause of Action). Defendant further avers that the cause of action for breach of implied covenant of good faith and fair dealing (Second Cause of Action) must be dismissed as duplicative of the breach of contract claim as it arises from the same facts and seeks identical damages. Lastly, the cause of action for a declaratory judgment is unnecessary as plaintiff has an adequate remedy in its cause of action for breach of contract.

Plaintiff replies that the causes of action for unjust enrichment, money had and received and breach of implied warranty of good faith and fair dealing are pleaded in the alternative in the event the Loan Agreement at issue is held not to cover the dispute in issue. Plaintiff also contends that it does not concede that its declaratory judgment cause of action is identical to its breach of contract claim as it seeks a declaration as alternative relief in the event the Loan Agreement is held not to cover the subject dispute.

A claim sounding in quasi contract only lies in the absence of an express agreement governing the dispute at issue (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987]). Thus, a plaintiff is precluded from recovering on a theory of unjust enrichment by the existence of a valid enforceable contract (see, e.g., Universal/MMEC, Ltd. v Dormitory Auth. of State of NY, 50 AD3d 352 [1st Dept 2008]; Cornhusker Farms v Hunts Point Coop. Mkt, 2 Ad3D 201, 206 [1st Dept 2003]). Similarly, a claim for money had and received, a quasi-contract claim, has been held to be barred by the existence of a written contract (see Atria Builders, LLC v Morgan 32 Holdings, LLC, 84 AD3d 508 [1st Dept 2011]). A claim for breach of the implied covenant of good faith and fair dealing must be dismissed as duplicative of a breach of contract claim where both claims arise from the same facts and seek identical damages (see Havell Capital Enhanced Mun. Income Fund, L.P. v Citibank, 84 AD3d 588 [1st Dept 2011]; Amcan Holdings, Inc. v Canadian Imperial Bank of Commerce, 70 AD3d 423, 426 [1st Dept 2010], lv denied 15 NY3d 704 [2010]).

There is no dispute as to the existence of a contract between the parties or as to whether the contract covers the dispute in this case. The parties' claims are contract-based predicated upon interpretations of section 2.4.1 of the Loan Agreement. Either the swap breakage fees are recoverable by defendant under the language of the Loan Agreement or they are not. Application of the above-cited legal principles to the facts of this case therefore require dismissal of the second cause of action for breach of implied covenant, the third cause of action for money had and received and the fourth cause of action for unjust enrichment.

With respect to the fifth cause of action for a declaratory judgment, "[a] cause of action for a declaratory judgment is unnecessary and inappropriate when the plaintiff has an adequate, alternative remedy in another form of action, such as breach of contract" (Apple Records, Inc. v Capitol Records, Inc., 137 Ad2d 50, 54 [1st Dept 1988]). Such is the case here as the breach of contract claim essentially is parallel to the claim for a declaratory judgment and plaintiff has an adequate remedy of an action for breach of contract. Accordingly, it is

ORDERED that defendant's motion to dismiss is GRANTED as to the second through fifth causes of actionand is DENIED as to the first cause of action; and it is further

ORDERED that defendant is directed to serve an answer to the complaint within twenty (20) days after service of a copy of this order with notice of entry; and it is further [*9]

ORDERED that counsel for the parties are directed to appear for a preliminary conference in Room 252, 60 Centre Street, New York, New York on Wednesday, February 27, 2013 at 9:30 AM.

This constitutes the decision and order of the Court.

DATED: January 10, 2013E N T E R,

______________________________

O. PETER SHERWOOD

J.S.C. Footnotes

Footnote 1:"O & M Agreement" is defined as "certain Mezzanine B Operations and Maintenance Agreement . . . between Borrower and Lender given in connection with the Loan (Ex. "B", p. 14).