North Hill Funding of New York, LLC ("Lender") moves for an order dismissing all claims and counterclaims against it and granting partial summary judgment, which defendants oppose. Lender commenced this action to recover under a set of loan agreements against Borrower and Guarantors. Borrower and Guarantors obtained the $34 million loan to purchase a parcel at 158 Madison Avenue, merge the parcel with several adjoining parcels at 24 and 26 East 33rd Street, and develop the merged parcels into retail outlets, a hotel, and residential condominiums. For the following reasons, Lender's motion to dismiss defendants' claims and counterclaims, and motion for partial summary judgment, is granted.

A.The Term Sheet

On November 5, 2007, Berkshire Capital Financial, Ltd. (Berkshire), acting as Lender's agent, and Capstone Real Estate Management, LLC (Capstone) entered into a Term Sheet pursuant to which Lender agreed to consider making a loan to an entity that Capstone was to form (see affidavit of Alfonso Kimche [Dec. 30, 2009], exhibit A [Term Sheet]). Capstone formed 158 Madison Avenue Associates, LLC ("Borrower"), for that purpose. The Term Sheet [*2]provided that if Borrower had substantially committed to the loan by November 30, 2007, Borrower would become liable for a "Break-Up Fee" equal to 0.5% of the contemplated loan (i.e., $175,000) in the event Borrower arranged or attempted to arrange financing with another lender (id. at 3). However, "Lender agrees that [the Break-Up Fee] section is only applicable if Lender substantially commits to this loan by November 30, 2007" (id. at 3).

B.The Loan Agreement and Guaranty

On January 9, 2008, Lender loaned Borrower $34 million under the Loan Agreement (affidavit of Steven Sinatra [Dec. 30, 2009], exhibit B [Loan Agreement]). The Loan Agreement replaced the Term Sheet in its entirety, stating that "[t]he terms, provisions and conditions of this Agreement and the other Loan Documents supersede the provisions of the Term Sheet" (Loan Agreement § 13.13, at 29). Pursuant to section 13.10 of the Loan Agreement, Borrower and Guarantors agreed that their obligation under the Loan Agreement was "absolute, unconditional and irrevocable," and that the loan would be repaid "under all circumstances whatsoever, including, without limitation, the existence of any claim, set off, defense or other right which Borrower or any Guarantor may have at any time against Lender . . . except for any such claim, setoff, defense or other right, if any, as to which a written notice shall have been given to Lender" (id. § 13.10, at 28-29).

Also on January 9, 2008, Guarantors executed and delivered to Lender a guaranty of payment ("the Guaranty," together with the Loan Agreement and all other documents executed or delivered in connection with the loan, "the Loan Documents") (id., exhibit C [Guaranty]). In the Guaranty, Guarantors promised to pay "all obligations, indebtedness and liability of any type of the Borrower to the Lender . . . the prompt payment of all principal, interest and other charges due under the note . . . and any and all costs and expenses incurred by the Lender in the enforcement of any of its rights under the Loan Documents or this Guaranty, including, without limitation, attorneys' fees" (Guaranty § 1 [a]-[b], at 2). The Guaranty is "continuing, absolute and unconditional," and is "not conditioned or contingent upon the genuineness, validity, or enforceability of the Loan Documents or other instruments relating to the creation or performance of the Guaranteed Liabilities" (id. § 3, at 2). Additionally, Guarantors' liability was to be "without regard to any claim, [*3]setoff, deduction, or defense of any kind which any party obligated under the Loan Documents may have or assert" (Guaranty§ 3, at 2), and was capped at $34 million (id. §2, at 2). Guarantors also warranted that "neither Lender nor any other party on Lender'[s] behalf has made any representation, warranty or statement to Guarantor in order to induce the Guarantor to execute this Guaranty" (id. § 6, at 3).

C.The Forbearance Agreement

By its terms, the loan matured one year later on January 9, 2009 (Guaranty, exhibit B [Loan Agreement] § 2.1, at 2). On April 30, 2009, Lender and Borrower entered into a Forbearance Agreement where the Borrower acknowledged that it entered into the agreement voluntarily, with the advice of counsel "and without threat, duress or other coercion of any kind by any Person" (Loan Agreement § 2.1, at 2, exhibit D [Forbearance Agreement] § 8.11, at 28). Under the Forbearance Agreement, Borrower acknowledged the failure of Borrower to repay the loan in full on the maturity date (Forbearance Agreement § 3.1, at 5), Borrower's indebtedness in the principal amount of $34 million, together with interest, costs and expenses (id. §§ 2.1 [a], 6.3, at 4, 17), Borrower's obligation to pay the indebtedness is "without offset, defense or counterclaim of any kind" (id. § 2.1 [b], at 4), Borrower is not "entitled to assert any lender liability' claims" against Lender and "Lender has not violated any express or implied obligation of good faith' or fair dealing' relating to the Borrower [or] Loan," (id. § 2.1 [b], at 4), and the Loan Documents, including the Guaranty, are "valid and binding" (id. § 2.3, at 4).

Guarantors also executed a Ratification, Reaffirmation and Confirmation of Guaranty (Reaffirmation of Guaranty), where each Guarantor ratified and reaffirmed its obligations under the Guaranty and represented, warranted and confirmed "to Lender that the Guaranty and all of Guarantor's obligations under the Guaranty remain in full force and effect and unmodified, without offset, defense, claim or counterclaim" (Reaffirmation of Guaranty, exhibit E, id. ¶ 2).

Pursuant to sections 4.2 (c) and 4.2 (g) of the Forbearance Agreement, Borrower was to make a payment of $1,472,202.41 into an interest reserve account on or before July 31, 2009, with a [*4]grace period of thirty days. Borrower failed to pay the amount due by July 31, 2009, or anytime thereafter. Instead, on August 5, 2009, Borrower made a partial payment of $309,906.66. Consequently, on September 1, 2009, Lender sent Borrower a notice of default under the Forbearance Agreement, where the total indebtedness exceeds $36 million.

D.Procedure

On September 29, 2009, Lender filed a summons and complaint against Guarantors in an action captioned North Hill Funding of New York, LLC v Maiden & Madison Holdings, LLC, RIP Holdings V, LLC, Capstone Business Credit, LLC, Capstone Capital Group I, LLC, John R. Rice, III and Joseph F. Ingrassia, Index No. 602997/2009. Lender asserted two causes of action: (1) recovery under the Guaranty of the principal ($32,843,437.50), interest, late fees, and other sums due to Lender pursuant to the Loan Documents, and (2) recovery of costs and expenses incurred and to be incurred by Lender in enforcing its rights under the Guaranty. Guarantors filed an answer on November 5, 2009, with eight affirmative defenses and four counterclaims. These counterclaims include: (1) economic duress, (2) economic duress - money damages, (3) breach of covenant of good faith, and (4) fraud in the inducement.

On November 6, 2009, Borrower, Capstone Business Credit, LLC (CBC), Capstone Capital Group I, LLC (CCG), John R. Rice, III and Joseph F. Ingrassia (Borrower Claimants) commenced a separate action against Lender and Berkshire under Index No. 603397/2009. The Borrower Claimants assert the same four counterclaims raised under Index No. 602997/2009, and an additional fraud in the inducement action based upon Lender's alleged unreasonable refusal to allow the liquidation of collateral pledged to Lender pursuant to the Forbearance Agreement.

Lender filed: (1) an unopposed motion to consolidate the two actions, which the Court granted, (2) a motion to dismiss the counterclaims under Index No. 602997/2009 (motion sequence no. 001), (3) a motion to dismiss the complaint under Index No. 603397/2009, which has been re-opened as motion sequence no. 002 under Index No. 602997/2009, per the consolidation, and (4) a motion for partial summary judgment on the complaint under Index No. 602997/2009 (motion sequence no. 001).

I.Lender's Motion to Dismiss Counterclaims / Claims

When determining a motion to dismiss, the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, LLP., 96 NY2d 300, 303 [2001]). The court will not accept as true factual and legal conclusions that are "either inherently incredible or flatly contradicted by documentary evidence" (Ullmann v Norma Kamali, Inc., 207 AD2d 691, 692 [1st Dept 1994]). Applying these standards, the Court addresses each counterclaim / cause of action in turn.

A.First Counterclaim / Claim: Economic Duress - Voidance

Second Counterclaim / Claim: Economic Duress - Money Damages

Borrower Claimants allege that Lender used its knowledge that the Borrower Claimants were in a precarious economic position to exact unconditional guarantees in the Loan Documents. Specifically, Borrower Claimants claim that "it was not simply that the Lender entities refused to go forward without unconditional guaranties, it is the fact that they waited until long after the preliminary due diligence was done, after drafts of legal documents had been exchanged, and only five days before the closing and less than two weeks before Christmas day, at a time the Borrower entities could not obtain alternative funding, before forcing the Borrowers to sign guaranties that created the economic duress on Borrower" (Borrower Claimants memorandum of law in opposition at 15 [Feb. 22, 2010]).

Borrower Claimants' duress claims fail based on the release in the Forbearance Agreement. Under New York law, "a release agreement against sophisticated commercial actors . . . may be voided on grounds of economic duress only in extreme and extraordinary cases" (Davis & Assocs. v Health Mgmt. Servs., Inc., 168 F Supp 2d 109, 114 [SD NY 2001] [internal quotations omitted]). "It is well established in New York that a valid release which is clear and unambiguous on its face and which is knowingly and voluntarily entered into will be enforced as a private agreement between the parties" (Berman v Parco, 986 F [*6]Supp 195, 208 [SD NY 1997]). "Settlement agreements are judicially favored and may not be lightly set aside" (Philips S. Beach, LLC v ZC Specialty Ins. Co., 55 AD3d 493, 494 [1st Dept 2008]). A release is "a jural act of high significance without which the settlement of disputes would be rendered all but impossible" (Mangini v McClurg, 24 NY2d 556, 563 [1969]).

Here, under the Forbearance Agreement, Borrower Claimants unambiguously released Lender from any possible liability for all claims that existed as of April 30, 2009. The release provided that:

"[T]he Borrower and each Guarantor hereby release and discharge the Lender and its agents . . . from and against any and all actions, causes of action, suits . . . of whatever kind or nature, in contract or in tort, in law or equity, known or unknown, which Borrower or any Guarantor . . . ever had, now have or hereafter can, shall or may have for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the date hereof which are based upon or arise under the Loan, the Loan Documents, this Agreement or any other document delivered in connection therewith."

(Affidavit of Steven Sinatra [Dec. 30, 2009], exhibit D [Forbearance Agreement] § 8.8 [a], at 26.)

Borrower Claimants' allegations do not, as a matter of law, identify any extraordinary circumstances cognizable under New York law that would void the agreement. Additionally, under the Forbearance Agreement, Borrower Claimants expressly acknowledge and reaffirm the Loan Documents, thereby waiving any claims as a matter of law (see e.g. Graubard Mollen Dannet & Horowitz v Edelstein, 173 AD2d 230, 231 [1st Dept 1999] [finding defendants waived defenses based upon fraudulent inducement and duress and ratified debt "by soliciting and accepting an extension of time to fulfill their obligations to the plaintiff and in executing a[n] . . . [a]greement acknowledging their indebtedness to the plaintiff"]). Nowhere do Borrower Claimants allege that in the year prior to their maturity default, or during the following nine months of forbearance, they attempted to invalidate the Guaranty. Only after Borrower Claimants accepted the benefits of the loan, defaulted on their forbearance obligations, and Lender commenced an action to recover under the Guaranty, did Borrower [*7]Parties claim that the Loan Documents were unenforceable. This lengthy and inexplicable delay, combined with acceptance of benefits without complaint, constitutes a waiver of any claim that may rescind the Loan Documents on the ground of duress or fraud in the inducement (see e.g. id.; Liberty Marble v Elite Stone Setting Corp., 248 AD2d 302, 304 [1st Dept 1998]).

Further, Borrower Claimants' duress claims are insufficient as a matter of law. Lender merely exercised its unambiguous contractual rights under the Term Sheet, as Lender could either decline to lend or determine, in it sole and absolute discretion, the terms on which it would lend (see Davis & Assocs., 168 F Supp 2d at 115 [finding no duress where contract did not obligate lender to continue funding]). "[U]nder New York law, threats to enforce a party's legal rights do not constitute duress" (Di Rose v PK Mgt Corp., 691 F2d 628, 633 [2d Cir 1982]). "To succeed on a duress theory, plaintiff would have to show he was compelled to agree to the terms of the release by means of a wrongful threat which precluded the exercise of his free will" (Fruchthandler v Green, 233 AD2d 214, 214 [1st Dept 1996]). Borrower Parties' allegations of fear that they would lose their investment, under the circumstances of this case is insufficient to support a claim of economic duress (Bank Leumi Trust Co. v D'Evori Intl., Inc., 163 AD2d 26, 31 [1st Dept 1990]["[W]e do not believe that the doctrine of economic duress which is traditionally used as a defense to an action, has any place in a cause of action seeking money damages."]). Thus, the first and second counterclaim / claims for economic duress and economic duress - money damages, respectively, are dismissed.

B.Third Counterclaim / Claim: Breach of Covenant of Good Faith

Borrower Claimants allege that Lender breached the implied covenant of good faith and fair dealing under the Term Sheet because "[w]ith an anticipated closing date of December 17, 2007 only days away, at the close of business on December 12, 2007, North Hill committed to provide the funding, albeit under totally new terms, including demands for personal and corporate guaranties" (Borrower Claimants memorandum of law in opposition at 4 [Feb. 22, 2010]). This claim fails not only due to the release provision under the Forbearance Agreement (see supra Discussion Part I.A), but also because (1) the express terms of [*8]the Term Sheet permit the conduct alleged to be a breach, and (2) the Term Sheet has been superceded by the Loan Documents and no claim for its breach may be brought.

"[A]lthough the duty of good faith and fair dealing between the parties to a contract is well recognized in this State, this duty will not be expanded to a point of conflict with the express terms of the bargained-for exchange, and equitable considerations will not allow an extension of coverage beyond [the agreement's] fair intent and meaning in order to obviate objections which might have been foreseen and guarded against" (see Mark Patterson, Inc. v Bowie, 237 AD2d 184, 186 [1st Dept 1997]). By its terms, the Term Sheet did not obligate Lender to make the loan, but merely "outlines the general terms and conditions under which North Hill Funding and/or assigns ("Lender") intends to proceed" (see affidavit of Alfonso Kimche [Dec. 30, 2009], exhibit A [Term Sheet] at 1).

Nor did the Term Sheet require that Lender provide any particular loan terms to Borrower. Borrower was forewarned that "[t]he pricing and terms of the loan [are] subject to," among other things, "[f]ull underwriting and legal due diligence including property site inspections," (Kimche affidavit at 3), and that "Lender's obligations hereunder are contingent on Lender completing, to its sole and absolute satisfaction, a complete review of the Applicant's and Sponsor's financials (personal and corporate) . . . At any time, Lender may elect in its sole and absolute discretion to terminate this agreement." (id. at 4-5) Since the Term Sheet expressly granted Lender the right either to refuse to fund altogether or set the terms and conditions under which it would loan, the Borrower Parties' assertion that Lender was implicitly obligated to fund without unconditional guarantees is an impermissible attempt to imply terms at odds with the express contract language.

Also, "where the parties have clearly expressed or manifested their intention that a subsequent agreement supersede or substitute for an old agreement, the subsequent agreement extinguishes the old one and the remedy for any breach thereof is to sue on the superseding agreement" (Northville Indus. Corp. v Fort Neck Oil Terminals Corp., 100 AD2d 865, 867 [2d Dept 1984]). Here, the parties expressly agreed in the Loan Agreement that "[t]he terms, provisions and conditions of this Agreement and the [*9]other Loan Documents supersede the provisions of the Term Sheet" (affidavit of Steven Sinatra [Dec. 30, 2009], exhibit B [Loan Agreement] § 13.13, at 29).

The Court recognizes that preliminary agreements "cover a broad scope ranging in innumerable forms and variations from letters of intent which presuppose that no binding obligations will be placed upon any party until final contract documents have been signed, to firm binding commitments which, notwithstanding a need for a more detailed documentation of agreement, can bind the parties to adhere in good faith to the deal that has been agreed" (Teachers Ins. & Annuity Assoc. v Tribune Co., 670 F Supp 491, 497 [SD NY 1987]). At oral argument, Borrower Claimants cited several cases to the Court, including Endovasc, Ltd. v J.P. Turner & Co., LLC, 169 Fed Appx 655 (2d Cir 2006), Brown v Cara, 420 F3d 148 (2d Cir 2005), VKK Corp. v Natl. Football League, 244 F3d 114 (2d Cir 2001), Adjustrite Sys., Inc. v Gab Bus. Servs., Inc., 145 F3d 543 (2d Cir 1998), Arcadian Phosphates, Inc. v Arcadian Corp., 884 F2d 69 (2d Cir 1989), Teachers Ins. & Annuity Assoc. v Tribune Co., 670 F Supp 491, 497 (SD NY 1987), and Conopco, Inc. v Wathne Ltd., 190 AD2d 587 (1st Dept 1993) to consider. However, none of these cases support Borrower Claimants' argument that Lender breached the implied covenant of good faith and fair dealing under the Term Sheet because, not only was the Term Sheet superceded by the Loan Documents, the Term Sheet also allowed the conduct alleged to be committed in bad faith. Thus, the third counterclaim / claim for breach of covenant of good faith is dismissed.

C.Fourth Counterclaim / Claim: Fraudulent Inducement

"In order to sustain a cause of action for fraudulent inducement, plaintiffs must show misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury" (Shea v Hambros PLC, 244 AD2d 39, 44 [1st Dept 1998]). Borrower Claimants allege that the Term Sheet constituted Lender's representation that it would provide up to $35 million in financing with only a " Standard Carve-Out' guarantee to be signed by Defendant Rice or other signatory acceptable to North Hill" (Borrower Claimants complaint ¶ 99 [Nov. 5, 2009]; [*10]Guarantors answer ¶ 122 [Nov. 5, 2009]), but this representation was false because Lender "intended to require further guarantees from Defendants, but failed to inform Defendants of this fact" (Borrower Claimants complaint ¶ 100 [Nov. 5, 2009]; Guarantors answer ¶ 123 [Nov. 5, 2009]). Borrower Parties allege that Capstone executed the Term Sheet in reliance upon the representation (Borrower Claimants complaint ¶ 102 [Nov. 5, 2009]; Guarantors answer ¶ 125 [Nov. 5, 2009]), and were injured "in that under the various documents that they have been forced to enter into, they are alleged to be in default on the guarantees and to owe North Hill very large sums" (Borrower Claimants complaint ¶ 104 [Nov. 5, 2009]; Guarantors answer ¶ 127 [Nov. 5, 2009]).

This claim also fails because (1) Borrower Parties executed the Forbearance Agreement containing the release provision (see supra Discussion Part I.A), (2) the Term Sheet negates any reliance by Borrower Parties upon a right to a loan without recourse guarantees (see supra Discussion Part I.B), and (3) Guarantors were aware of the nature of the Guaranty. The Term Sheet disclaims a commitment to lend or that Lender would lend on any particular terms (see supra Discussion Part I.B). Borrower Parties, therefore, could not have relied on the Term Sheet as a commitment to lend without requiring recourse guarantees, and thus, there was no fraud as a matter of law (see Marine Midland Bank, N.A. v Hallman's Budget Rent-A-Car, Inc., 204 AD2d 1007, 1008 [4th Dept 1994] [holding that trial court erred in refusing to dismiss fraudulent inducement claim "[g]iven the express terms of those agreements"]; see also Bank Leumi, 163 AD2d at 31 ["[R]eliance is an essential element of . . . a [fraudulent inducement] claim or defense, and given the unambiguous terms of the loan agreement, which leaves to the [Lender's] sole discretion the decision whether to advance funds, any such reliance would not be justified."]).

As well, at the time of execution, Borrower knew that the Loan Agreement required the delivery of unconditional guarantees, and Guarantors knew that they were delivering guarantees (see Friedman v Fife, 262 AD2d 167, 168[1st Dept 1999] [affirming trial court's dismissal of investor's claim alleging fraudulent inducement into entering IPO by representation that there would not be restrictions on sale of stock where investor voluntarily signed stock restriction agreement]). In fact, Borrower Parties [*11]knew of any alleged fraud in connection with the Term Sheet, i.e. Lender's requirement of "further guarantees" (Borrower Claimants complaint ¶ 100 [Nov. 5, 2009]; Guarantors answer ¶ 123 [Nov. 5, 2009]), and still voluntarily executed the Loan Agreement and Guaranty, thereby waiving their fraud claims (The Chelsea, LLC v Seventh Chelsea Assocs., LLC, 304 AD2d 498, 498 [1st Dept 2003] [affirming trial court's dismissal of fraudulent misrepresentation claim because "any claim by plaintiff of reasonable reliance on representations by defendant is fatally undermined by plaintiff's admission that it discovered all the material facts prior to electing to close"]; Oleet v Pennsylvania Exch. Bank, 285 AD 411, 414 [1st Dept 1955] ["[T]he borrowers, after discovering the alleged misrepresentation, voluntarily entered into an agreement extending the time and terms of payment. Such an agreement constituted a waiver of the misrepresentation."]). Thus, the fourth counterclaim / claim for fraudulent inducement is dismissed.

D.Fifth Claim: Fraudulent Inducement

In their fifth cause of action, Borrower Claimants allege that they had an "opportunity" to "liquidate the underlying asset of the collateral mortgage and raise funds to offset the legitimate amounts due to" Lender (Borrower Claimants complaint ¶ 109 [Nov. 5, 2009]). Borrower Parties claim that Lender "refused to allow the liquidation" (id. ¶ 110), acted "unreasonabl[y] . . . to force economic disadvantage" for Borrower Claimants (id. ¶ 111), and intended to cause Borrower Claimants' "downfall . . . to prey upon and seek control" of Borrower Claimants' assets (id. ¶ 112). The collateral at issue is a mortgage at 18 East 68th Street held by CBC, which assigned to Lender all of its right, title and interest in the collateral under the Collateral Agreement (affidavit of Steven Sinatra [Dec. 30, 2009], exhibit F [Collateral Agreement]).

Under section 14 of the Collateral Agreement, which refers to section 4.3 (b) of the Forbearance Agreement, Lender is to release its assignment of the collateral only upon payment to Lender of "the greater of (i) forty (40%) percent of the Net Proceeds received by CBC from the sale, conveyance or other disposition of 18 East 68th Street, or (ii) $5,500,000.00" (id., exhibit D [Forbearance Agreement] § 4.3 [b], at 10). Borrower Claimants fail to allege that either of these conditions was [*12]satisfied. Thus, the fifth claim for fraudulent inducement is dismissed.

II.Lender's Motion For Partial Summary Judgment

To succeed on a motion for summary judgment, a movant must establish its claim or defense "sufficiently to warrant the court as a matter of law in directing judgment" (CPLR 3212 [b]), and it "must do so by tender of evidentiary proof in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). To defeat a motion for summary judgment, the opposing party must "show facts sufficient to require a trial of any issue of fact" (CPLR 3212 [b]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v NY Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once the proponent "has met its burden, it is incumbent upon [the opposing party] to establish, by admissible evidence, that a triable issue of fact exists" (SCP (Bermuda) Inc. v Bermudatel Ltd., 224 AD2d 214, 216 [1st Dept 1996]).

It is well settled that where a party seeks summary judgment on a guaranty, it demonstrates "a prima facie showing of its entitlement to judgment as a matter of law by submitting proof of an underlying credit agreement, a personal guaranty bearing [defendants'] signature, and the defendants' failure to make payment" (N. Fork Bank Corp. v Graphic Forms Assoc., Inc., 36 AD3d 676, 676 [2d Dept 2007]). Here, Guarantors admit that Borrower and Guarantors executed the Loan Documents (Guarantors answer ¶¶ 6-9 [Nov. 5, 2009]), Borrower and Guarantors executed the Loan Documents (id. ¶¶ 13, 14), and Borrower did not pay the full amount due on July 31, 2009, or within the grace period, pursuant to the Forbearance Agreement (id. ¶¶ 15-17). Guarantors further admit that "an undetermined sum of money is due and owing" to Lender (id. ¶ 19). Finally, Guarantors' defenses are unavailing. Thus, Lender's motion for partial summary judgment on its two causes of action for recovery under the Guaranty is granted.

For the foregoing reasons, it is:

ORDERED, that Lender's motion to dismiss Guarantors' counterclaims and Borrower Claimants' complaint is granted; and it is further [*13]

ORDERED, that Lender's motion for partial summary judgment on its two causes of action for recovery under the Loan Documents is granted, and the parties are to appear on May 19, 2010, at 2:30PM, for a hearing on damages; and it is further

ORDERED, that the Clerk is directed to enter judgment accordingly.

This constitutes the Decision and Order of the Court.

Dated: May 3, 2010

ENTER:

James A. Yates, J.S.C.