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BERLINER v. CROSSLAND FED. SAV. BANK

December 2, 1994

ERIC L. BERLINER, Plaintiff, against CROSSLAND FEDERAL SAVINGS BANK, Defendant.

SONIA SOTOMAYOR, U.S.D.J.


The opinion of the court was delivered by: SONIA SOTOMAYOR

Opinion and Order

 In this action for breach of contract and fraud in the inducement, defendant CrossLand Federal Savings Bank ("CrossLand") moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rule 56"). For the reasons discussed below, the motion to dismiss is granted in part and denied in part.

 Background

 CrossLand held a mortgage and mortgage note (hereinafter the "Mortgage") on property located at 25 Melville Park Road, Melville, New York. On February 1, 1993, the Mortgage became due in the principle amount of $ 13,200,000, which went unpaid. Mark Cotton ("Cotton"), a Vice President in CrossLand's Special Assets Department, was responsible for managing the Mortgage.

 In April 1993, Cotton took steps to renegotiate the loan with the original borrower, as well as to arrange an auction for the Mortgage. To effectuate the latter goal, Cotton contacted Edward Brailey ("Brailey"), a mortgage broker. Brailey called his brother, who in turn told plaintiff Eric L. Berliner ("Berliner") about the Mortgage. Berliner is an attorney and businessman, with "extensive experience" in the real estate field. Plaintiff's Memorandum of Law in Opposition to CrossLand Federal Savings Bank's Motion for Summary Judgment ("Pl.'s Memorandum") at 2. Berliner was interested in the Mortgage, and sought access to CrossLand's confidential file on the Mortgage.

 On April 1, 1993, Berliner signed a confidentiality agreement (the "Confidentiality Agreement"). The Confidentiality Agreement allowed Berliner to review CrossLand's file, and provided in part:

 
CrossLand believes that the Information... provide[d] under this Agreement will be material and accurate for purposes of your making an evaluation of the loan. CrossLand does not make any representations to you with respect to the accuracy of the Information; and only representations and warranties which are set forth in a definitive legal agreement for the possible transaction between you and CrossLand for the sale of the loan...shall have any legal effect.

 Affidavit of Eric Berliner ("Berliner Aff."), sworn to October 14, 1993, at Ex. C, P 5. On April 9, 1993, Berliner went to CrossLand and reviewed the confidential file. While at CrossLand, Berliner and Cotton discussed the mechanics of the bidding process. Id. Cotton told Berliner that if his bid was accepted, he would have to act fast. Id.

 On April 12, 1993, Berliner submitted a bid for the Mortgage in the amount of $ 5,025,000. In an accompanying cover letter, Berliner requested a two week due diligence period if his bid was accepted. Affidavit of Mark Cotton ("Cotton Aff."), sworn to September 21, 1994, at Ex. A. On April 15 and 16, Berliner telephoned Cotton to ask about the status of the bidding process. In the course of these conversations, Berliner admits that Cotton said that there would be a delay in the bidding process because CrossLand's Executive Committee had to approve each bid before it selected a winner. Berliner Aff. at P 7. Nevertheless, Berliner claims that Cotton led him to believe that this approval was a mere formality because as the bank officer in charge of the Mortgage, Cotton had "full authority." Id.

 On April 19, 1993, Cotton telefaxed a letter to Berliner. The letter, which is addressed to Brailey, stated in relevant part:

 
It is my pleasure to inform you that your client, Mr. Eric L. Berliner, has won the bidding process [for the Mortgage]...
 
I respectfully request that you and your client make arrangements to sign the Letter of Agreement and present a 10% deposit, certified funds, within ...

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