January 7, 2014
TSL (USA) Inc., et al., Plaintiffs-Appellants,
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.
Sweeny, J.P., Acosta, Saxe, Moskowitz, Clark, JJ.
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 N.Y.2d 257 ; Lloyd v Town of Wheatfield, 67 N.Y.2d 809  ; Fruition, Inc. v Rhoda Lee, Inc., 1 A.D.3d 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 Holdings, Inc. v Deutsche Bank AG., 78 A.D.3d 446, 447 [1st Dept 2010]).
We have considered plaintiff's remaining arguments and find them unavailing.