New York Supreme and/or Appellate Courts Appellate Division, First Department
February 16, 2012
6827-WELLS FARGO BANK, NATIONAL ASSOCIATION, ETC., ET AL.,
GSRE II, LTD., ET AL.,
Wells Fargo Bank, N.A. v GSRE II, Ltd.
Decided on February 16, 2012
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.
Friedman, J.P., Sweeny, Renwick, DeGrasse, Roman, JJ.
Judgment, Supreme Court, New York County (Barbara R. Kapnick, J.), entered December 2, 2010, dismissing the complaint with prejudice, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered November 17, 2010, which granted defendants' motion to dismiss the complaint, and denied as moot plaintiffs' cross motion to compel discovery, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
The motion court correctly dismissed the complaint upon finding that the documentary evidence conclusively established defendants' right to sell the mortgage loan, in its entirety, without plaintiffs' consent -- the very act which plaintiffs contest (see JFK Holding Co., LLC v City of New York, 68 AD3d 477, 477  ["factual claims, which are . . . flatly contradicted by documentary evidence . . . are not presumed to be true on a motion to dismiss for legal insufficiency"]).
The court also properly dismissed plaintiffs' equitable claims. Plaintiffs failed to show that they would suffer irreparable harm absent an injunction preventing sale of the mortgage loan (see Broadway 500 W. Monroe Mezz II LLC v Transwestern Mezzanine Realty Partners II, LLC, 80 AD3d 483, 484  [loss of investment can be compensated by damages, thus cannot be used to establish irreparable harm]). Moreover, the claim for declaratory relief was also properly dismissed, in light of the assertion of the breach of contract claim (see Singer Asset Fin. Co., LLC v Melvin, 33 AD3d 355, 358  ["plaintiff may not seek a declaratory judgment when other remedies are available, such as a breach of contract action"]).
We have considered the parties' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 16, 2012
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