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VILLAGE v. BANKERS TRUST CO.

March 28, 1996

VILLAGE ON CANON, DAYTON-CANON, GEMINUS CORPORATION, and JACOBO GOLDBERG, Plaintiffs, against BANKERS TRUST COMPANY, and PAUL TUROVSKY, Defendants.


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 This is an action arising from the failure to extend a $ 29 million bridge loan made by defendant Bankers Trust Co. ("Bankers Trust") to plaintiff Village On Canon ("VOC"), a California general partnership. The Complaint sets forth nine counts ranging from breach of contract and breach of fiduciary duty to intentional and negligent misrepresentation. The defendants, Bankers Trust and its officer Paul Turovsky now move to dismiss the entire Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons that follow, the defendants' motion is granted in part and denied in part.

 I.

 On a motion to dismiss, the allegations in the complaint are presumed true and all reasonable inferences are construed in the plaintiff's favor. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, 130 L. Ed. 2d 63, 115 S. Ct. 117 (1994). Moreover, the Court may consider documents attached to the complaint as exhibits or incorporated by reference. See San Leandro Emergency Medical Group Profit Sharing Plan v. Philip Morris Cos., Inc., 75 F.3d 801, 1996 U.S. App. LEXIS 1083, *19, 1996 WL 33050, at *5-*6 (2d Cir. 1996) (holding that documents integral to the complaint may be considered on a motion to dismiss even when only partially quoted in complaint); National Ass'n of Pharmaceutical Mfrs., Inc. v. Ayerst Labs, 850 F.2d 904, 910 n.3 (2d Cir. 1988); Sazerac Co., Inc. v. Falk, 861 F. Supp. 253, 257 (S.D.N.Y. 1994); Cue Fashions, Inc. v. LJS Distrib., Inc., 807 F. Supp. 334, 335 (S.D.N.Y. 1992). *fn1" Accordingly, the following facts are presumed true on this motion.

 On November 20, 1989, Bankers Trust loaned VOC $ 29 million for one year, secured by VOC's interest in certain commercial real estate in California. (Compl. P 22-23.) The Bankers Trust loan to VOC was guaranteed by plaintiffs Geminus, a Cayman Island corporation, (Compl. P 3), and Goldberg, an officer of Geminus and VOC's primary investor, either individually or through his corporate affiliates. (Compl. P 4.) To support the guaranties, Geminus established a pair of $ 3 million collateral accounts, one to finance property improvements to ensure completion of the real estate project, and the other to guaranty debt service on the VOC loan. (Compl. P 22.)

 The terms and conditions of the loan and the guaranties were documented by a Loan Agreement and Promissory Note, both executed by VOC, a Guaranty of Completion executed by Geminus, and Debt Service Guaranties executed by both Geminus and Goldberg. (See Compl. Exs. 1-3, 5; Affidavit of David B. Eizenman, sworn Aug. 2, 1995, Ex. B.) The Loan Agreement included several customary provisions, including a merger and integration clause, (Compl. Ex. 1, PP 9.1, 9.18), a prohibition against oral modifications, (Compl. Ex. 1, P 9.1), and a denial of waiver by course of conduct or forbearance. (Compl. Ex. 1, PP 9.1, 9.2.) The Loan Agreement also made nonpayment of the loan at maturity an Event of Default. (Compl. Ex. 1, P 8.1(a)(i).) The Guaranty of Completion and Geminus Debt Service Guaranties gave Bankers Trust sole and absolute discretion to apply any undisbursed funds from the collateral accounts towards outstanding indebtedness under the Loan Agreement as of the maturity date. (See Compl. Ex. 2, P 13, Ex. 3, P 13.)

 With respect to the financing itself, Bankers Trust had the right to sell participation interests in the loan to other financial institutions at any time. (Compl. Ex. 1, P 9.4(c).) Any such participant would be entitled to require Bankers Trust to obtain the participant's consent before extending the maturity of the loan. (See Compl. Ex. 1, P 9.4(c)(b)(III).)

 The loan closed and the funds and relevant documents were transmitted on November 20, 1989. (Compl. P 23.) The debt service and completion collateral accounts were also funded for $ 3 million each to secure the Guaranties. (Compl. P 25.)

 Shortly after the closing, Bankers Trust and VOC entered into an exclusive agency arrangement that enabled Bankers Trust to solicit investors to provide long-term financing to VOC beyond the term of the bridge loan. This arrangement was documented by a Financial Advisor Agreement. (Compl. Ex. 4.) Bankers Trust's role as exclusive agent for placing VOC's permanent financing was included in the original negotiations regarding the bridge loan, (Compl. P 17), and appeared as a term in Bankers Trust's Commitment Letter. (Compl. PP 18-19.)

 According to the Complaint, VOC received oral assurances from Bankers Trust that the bridge loan would be extended if permanent financing was not arranged before the November 20, 1990 maturity date. (Compl. P 20.) VOC alleges that such oral promises were made before, during, and after the loan closed. (Compl. PP 20, 24, 28, 30.) On August 6, 1990, representatives of Bankers Trust and VOC met to discuss terms of the loan extension. (Compl. P 30.) Bankers Trust sent VOC a letter dated August 31, 1990 setting forth the terms and conditions for the proposed extension. (Compl. PP 31-32, Ex. 6.) The letter indicated that the extension fee would be determined by the participants and explained that:

 
After receipt of the above-mentioned items we will contact participants to determine their requirements for approving the extension. Although participants have expressed concern regarding the leasing status of the property, we believe they will consent to the extension with the terms mentioned above if they are assured that Bankers Trust is actively involved in marketing the property. We will advise you as soon as possible regarding the outcome of our discussions with the participants. Once we receive approval from participants, we will proceed with Bankers' approval process.

 (Compl. Ex. 6.) VOC responded by letter dated September 6, 1990, purporting to accept the terms of the August 31 letter, although VOC quarrelled with two items--whether any legal fees needed to be paid by VOC, and the amount of the late fee charged by Bankers Trust. (Compl. P 33, Ex. 7.)

 No extension was ever made. The loan matured on November 20, 1990. (Compl. P 35.) Contrary to the express terms of the August 31, 1990 letter, VOC alleges that it was at this point that Bankers Trust informed it for the first time that the extension required the approval of the participants. (Compl. P 36.) On November 27, 1990, Bankers Trust withdrew from the Financial Advisor Agreement and terminated the agreement. (Compl. P 37; Eizenman Aff. Ex. C.) In December 1990, VOC requested certain disbursements from the completion collateral account, but Bankers Trust refused to release any funds. (Compl. P 41.) From the time the loan matured, VOC, (Compl. P 36), and the guarantors, (Compl. P 40), continued to make interest payments on the loan, while continuing to negotiate through late 1991 for an extension. (Compl. P 39.)

 On December 26, 1991, Bankers Trust advised VOC's tenants to remit their rental payments directly to the bank, (Compl. P 43), and Bankers Trust charged the debt service and completion collateral accounts to pay unpaid principal and interest on the VOC loan. (Compl. P 43.) Following a period from January 1992 to April 1992 during which VOC unsuccessfully sought bankruptcy protection, Bankers Trust conducted a trustee's sale and a nonjudicial foreclosure on the property. (Compl. P 44.)

 VOC then initiated this action, alleging the foregoing facts, arguing principally that Bankers Trust's failure to extend the loan as it allegedly promised to do, combined with Bankers Trust's withdrawal from the exclusive agency agreement, caused the failure of the real estate venture. Bankers Trust characterizes this suit somewhat differently, essentially relying on the documents to argue that it acted well within its legal rights and that the sequence of events alleged by VOC are simply not actionable under any of the nine counts in the Complaint.

 II.

 The parties have argued this motion under New York law. Each of the documents contains a choice of law clause that requires the application of New York law, and therefore the parties are correct. (See Compl. Exs. 1, P 9.13 (Loan Agreement), 2, P 16(a) (Guaranty of Completion), 3, P 12(a) (Geminus Debt Service Guaranty), 4, P 15 (Financial Advisor Agreement), 5, P 12(a) (Goldberg Debt Service Guaranty); Eizenman Aff. Ex. B., P 16(a) (Promissory Note).) Choice of law clauses in loan documents and contracts are generally honored in New York. See Freedman v. Chemical Constr. Corp., 43 N.Y.2d 260, 265, 401 N.Y.S.2d 176, 372 N.E.2d 12 n.*, 401 N.Y.S.2d 176, 179 n.* (1977); Culbert v. Rols Capital Co., 184 A.D.2d 612, 613, 585 N.Y.S.2d 67, 68 (2d Dep't 1992).

 III.

 The first and second counts set forth claims for breach of contract regarding Bankers Trust's alleged promise to extend the maturity of the loan. Count I alleges breach of an oral promise by Bankers Trust made prior to, (Compl. PP 19-24), contemporaneous with, (Compl. PP 24, 27, 47), and after, (Compl. PP 24, 30, 47), the closing of the loan. Count II alleges that the exchange of written correspondence in August and September 1990 established a written agreement to extend the loan and that Bankers Trust breached that agreement as well. (Compl. P 52, Exs. 6-7.) Neither claim for breach of contract states a claim upon which relief can be granted.

 A.

 New York law permits parties to a written contract to agree that modification of that contract must also be in writing. General Obligations Law § 15-301(1) provides that: "A written agreement . . . which contains a provision to the effect that it cannot be changed orally, cannot be changed by an executory agreement unless such executory agreement is in writing and signed by the party against whom enforcement of the change is sought or by his agent." See also Rose v. Spa Realty Assocs., 42 N.Y.2d 338, 397 N.Y.S.2d 922, 366 N.E.2d 1279 (1977); Opton Handler Gottlieb Feiler Landau & Hirsch v. Patel, 203 A.D.2d 72, 73, 610 N.Y.S.2d 26, 27 (1st Dep't 1994). The Loan Agreement and the Promissory Note both include provisions prohibiting oral modifications. (Compl. Ex. 1, P 9.1; Eizenman Aff. Ex. B, P 16(c).) The alleged oral agreement to extend the maturity of the loan is a modification of express terms in the written loan agreements, (see Compl. Ex. 1, P 2.2 (maturity date); Eizenman Aff. Ex. B., P 3 (same)), and is therefore barred by the provisions prohibiting such oral modifications pursuant to GOL § 15-301(1). See, e.g., Towers Charter & Marine Corp. v. Cadillac Ins. Co., 894 F.2d 516, 521-22 (2d Cir. 1990).

 There are two exceptions to the no-oral-modifications rule: partial performance and equitable estoppel. Plaintiffs argue that both exceptions apply. The New York Court of Appeals explained these exceptions as follows:

 
Partial performance of an oral agreement to modify a written contract, if unequivocally referable to the modification, avoids the ...

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