| Broadway 500 W. Monroe Mezz II LLC v Transwestern Mezzanine RealtyPartners II, LLC |
| 2011 NY Slip Op 00166 [80 AD3d 483] |
| January 13, 2011 |
| Appellate Division, First Department |
| Broadway 500 West Monroe Mezz II LLC et al.,Appellants, v Transwestern Mezzanine Realty Partners II, LLC, et al.,Respondents. |
—[*1] Molo Lamken LLP, Washington, D.C. (Robert K. Kry of counsel), for Transwestern respondents. Allen & Overy LLP, New York (Jacob S. Pultman of counsel), for 500 W Monroe Mezz II, LLCc/o Piedmont Office Realty Trust, Inc., respondent.
Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered September 8,2010, which denied plaintiffs' motion for a preliminary injunction to enjoin defendants TranswesternMezzanine Realty Partners II, LLC and 500 W Monroe Mezz II, LLC c/o Piedmont Office RealtyTrust, Inc. from foreclosing on plaintiffs' equity interest in property located at 500 West Monroe Streetin Chicago and to require defendants to deposit into escrow certain funds derived from the property,unanimously affirmed, without costs.
Plaintiffs' principal claim that Transwestern breached its contract by not paying the senior loanextension costs is foreclosed by the plain language of the forbearance agreement and its amendingdocuments, including the 2010 letter agreement, which restored to plaintiffs the right to extend thesenior loans without Transwestern's consent and, in exchange, provided that neither the borrower northe lender was obligated "to make any payment or incur any expense on account of the Second SeniorExtension Costs." Transwestern's construction of the letter agreement as commercially reasonable issupported by the record evidence, which demonstrates that Transwestern had serious doubts aboutwhether further extensions made economic sense and accordingly drafted the letter agreement so thateither party could extend the loan but could not compel the other to pay the costs of the extension.Plaintiffs' remaining claims against Transwestern and 500 W Monroe lack sufficient evidentiary support.Moreover, Transwestern's discussions about the loan with 500 W Monroe were consistent with theterms of the forbearance agreement and the loan documents.
Since "[plaintiffs'] interest in the real estate is commercial, and the harm [they] fear[ ] is the loss of[their] investment, as opposed to loss of [their] home or a unique piece of property in which [they have]an unquantifiable interest," they can be compensated by damages and therefore cannot demonstrateirreparable harm (see SK Greenwich LLC v W-D Group [2006] LP, 2010 WL [*2]4140445, *3, 2010 US Dist LEXIS 112655, *8-9 [2010]). Plaintiffsmaintain that it would be impossible "to quantify the future value of the revenue stream and waterfallfrom the Property." However, even lost profits that are difficult to ascertain can be compensated bymoney damages (Sterling Fifth Assoc. vCarpentille Corp., 5 AD3d 328, 329 [2004]). Plaintiffs have offered no evidence in supportof their claim of injury to reputation (seeJacob H. Rottkamp & Son, Inc. v Wulforst Farms, LLC, 17 Misc 3d 382, 388 [2007]).
The balance of equities weighs in defendants' favor since 500 W Monroe has expended significantfunds in connection with the foreclosure sale, in addition to payments of approximately $1,131,954 toextend the mortgage and mezzanine A loans on behalf of plaintiffs, and plaintiffs have not paid the loanor the extension fees.
Given the unlikelihood of plaintiffs' succeeding on the merits and the availability of money damages,we see no need for defendants to place funds in escrow. Concur—Saxe, J.P., Moskowitz,Richter, Manzanet-Daniels and RomÁn, JJ.