This action was commenced on July 7, 2003 and is now over 12 years old. It began as a commercial foreclosure on certain hotel property located in the Village of Lake Placid, Essex County. The owner of the property — defendant Northern Hotels Corporation (hereinafter defendant) — then filed for bankruptcy and the property was sold at auction at the direction of the Bankruptcy Court. Once the bankruptcy was concluded, plaintiff moved for summary judgment in this action, seeking a deficiency judgment for the balance due and owing on the various loan documents. This motion was denied by Decision and Order dated October 17, 2005 (hereinafter the October 2005 decision), with the Court finding that plaintiff was not entitled to a deficiency judgment because a foreclosure sale was never held (see RPAPL 1371 [1]).

In November 2009, plaintiff served an amended complaint seeking only a deficiency judgment against defendant Northern Resorts, Inc. (hereinafter Northern Resorts), a related entity [*2]which leased certain suites on the hotel property, and defendant Barry C. Maloney, the president of Northern Hotels and Northern Resorts. Northern Hotel, Northern Resorts and Maloney (hereinafter collectively referred to as defendants) then served an answer to the amended complaint with four counterclaims. The third and fourth counterclaims were asserted against both plaintiff and additional defendants Northwoods Inn, LLC and 333 Cherry, LLC, which purchased the hotel property from plaintiff's designee following the auction. Additional defendants subsequently moved to dismiss these counterclaims, which motion was granted by Decision and Order dated April 11, 2011. As such, additional defendants are no longer parties to this action. Plaintiff then moved to dismiss the third and fourth counterclaims, which motion was granted by Decision and Order dated November 21, 2012 (hereinafter the November 2012 decision), leaving only defendants' first and second counterclaims for disposition.

The November 2012 decision directed counsel to appear for a conference on January 4, 2013, with the hope that the matter could finally move forward. A Preliminary Conference Stipulation and Order was then issued on February 1, 2013. Since that time, it appears that little progress has been made, with the parties exchanging some discovery but otherwise arguing over what is and is not discoverable. Presently before the Court is plaintiff's second motion for summary judgment and defendants' cross motion to compel discovery responses.^[FN1] The motion and cross motion will be addressed in seriatim.

At the outset, while defendants contend that plaintiff may not make a second motion for summary judgment, the Court finds this contention to be without merit. This is not a case where a "successive motion for summary judgment was made without a sufficient showing of newly-discovered evidence or sufficient cause" (Pavlovich v Zimmet, 50 AD3d 1364, 1365 [2008]; see Matter of Bronsky-Graff Orthodontics, P.C., 37 AD3d 946, 947-948 [2007]). Rather, since issuance of the October 2005 decision denying plaintiff's first motion, plaintiff has served an amended complaint and defendants have served an answer to amended complaint with counterclaims. Plaintiff's second motion is therefore permissible.

Turning now to the merits, the Court will first consider that aspect of the motion for summary judgment which seeks to dismiss defendants' remaining counterclaims. To that end, defendants' first counterclaim alleges that plaintiff is liable for tortious interference with prospective contractual relations. Specifically, defendants allege that plaintiff placed "commercially unreasonable" conditions on their attempt to obtain financing in the form of a second mortgage on the hotel property and, as a result, the financing fell through.

It is well established that "where there is an existing, enforceable contract and a defendant's deliberate interference results in a breach of that contract, a plaintiff may recover damages for tortious interference with contractual relations even if the defendant was engaged in lawful behavior" (NBT Bancorp v Fleet/Norstar Fin. Group, 87 NY2d 614, 621 [1996]; see Israel v Wood Dolson Co., 1 NY2d 116, 119 [1956]). "Where there has been no breach of an existing contract, but only interference with prospective contract rights, however, plaintiff must show more culpable conduct on the part of the defendant" (NBT Bancorp v Fleet/Norstar Fin. [*3]Group, 87 NY2d at 621; see Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183, 193-194 [1980]). Specifically, plaintiff must demonstrate that defendant employed " [w]rongful means' [which] include[s] physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure" (Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d at 191; accord NBT Bancorp v Fleet/Norstar Fin. Group, 87 NY2d at 624).

Here, plaintiff contends that it had a contractual right not to consent to the additional financing defendants were attempting to secure on the hotel property. Indeed, section 7.2 (a) of the "Loan and Security Agreement" (hereinafter the Loan Agreement) provides as follows:

"Without the prior written consent of [plaintiff] which may be granted, withheld or conditioned in [plaintiff's] discretion, [Northern Hotel and Northern Resorts] will not obtain financing, except from Guarantor ^[FN2] on an unsecured basis or by equity infusion, or grant liens with respect to the Collateral other than those in favor of [plaintiff]."

Plaintiff further contends that defendants made no showing whatsoever that it employed wrongful means in declining to consent to the additional financing. Rather, it simply protected its own economic interests, as it was entitled to do (see NBT Bancorp v Fleet/Norstar Fin. Group, 87 NY2d at 624; Besicorp, Ltd. v Kahn, 290 AD2d 147, 150 [2002], lv denied 98 NY2d 601 [2002]; see also Devash LLC v German Am. Capital Corp., 104 AD3d 71, 79 [2013], lv denied 21 NY3d 863 [2013]). Under the circumstances, the Court finds that plaintiff has satisfied its initial burden of demonstrating its entitlement to dismissal of the first counterclaim, thus shifting the burden to defendants to raise a triable issue of fact in opposition thereto.

In this regard, defendants have submitted the affidavit of Maloney, who contends that the additional financing would have been secured but for plaintiff's refusal to "release from the first mortgage the $3 million Notes Receivable line of credit." Maloney further contends that plaintiff negotiated in bad faith, as it failed to advise of its refusal until negotiations had been ongoing for over a year. The Court finds that these contentions fall far short of establishing the culpable conduct necessary to support a cause of action for tortious interference with prospective contractual relations (see NBT Bancorp v Fleet/Norstar Fin. Group, 87 NY2d at 624; Besicorp, Ltd. v Kahn, 290 AD2d at 150). Indeed, plaintiff's decision not to release the $3 million Notes Receivable line of credit from the first mortgage was motivated by a desire to promote its own economic interests — not "by malice or a desire to inflict injury by unlawful or wrongful means" (Besicorp, Ltd. v Kahn, 290 AD2d at 150). The Court therefore finds that defendants have failed to raise a triable issue of fact and grants that aspect of plaintiff's motion for summary judgment seeking to dismiss the first counterclaim.

Defendants' second counterclaim seeks an accounting. To that end, the Court " possesses the jurisdiction to order an accounting when four factors exist[:] (1) a fiduciary relationship, (2) entrustment of money or property, (3) no other remedy, and (4) a demand and refusal of an accounting'" (Matter of Mary XX., 33 AD3d 1066, 1068 [2006], quoting Matter of Kent, 188 Misc 2d 509, 510 [Sup Ct, Dutchess County 2001] [citation omitted]; see 300 Broadway Realty Corp. v Kommit, 37 Misc 2d 325, 325 [Sup Ct, Albany County 1962]).

Here, plaintiff contends that it does not have a fiduciary relationship with defendants. Specifically, plaintiff contends that its relationship with Northern Hotel and Northern Resorts is that of debtor—creditor while its relationship with Maloney is that of guarantor—creditor, and neither constitutes a fiduciary relationship. Indeed, a fiduciary relationship "does not exist in arms-length transactions between debtors and creditors" (Sears v First Pioneer Farm Credit, ACA, 46 AD3d 1282, 1286 [2007]; see Trustco Bank, N.A. v Cannon Bldg. of Troy Assoc., 246 AD2d 797, 799 [1998]; Landes v Sullivan, 235 AD2d 657, 660 [1997]), nor does such a relationship "arise[] from a long-standing . . . creditor-guarantor relationship" (Village on Canon v Bankers Trust Co., 920 F Supp 520, 532 [SD NY 1996]). The Court therefore finds that plaintiff has satisfied its initial burden of demonstrating its entitlement to dismissal of the second counterclaim, again shifting the burden to defendants to raise a triable issue of fact.

To that end, defendants contend that their respective relationships with plaintiff were not debtor—creditor and guarantor—creditor but, rather, "time share purchaser to third party lock box administrator." Maloney further explains as follows: "[Plaintiff's] primary security for the Receivable Loan was the assignment by [Northern Resorts] of the individual timeshare owners note payments made to a third party lock box which was then drawn upon by [plaintiff.]" Defendants further contend that "there were . . . funds belonging to [Northern Resorts] that were converted by [plaintiff] after the [s]ale [of the hotel property] when [plaintiff] appointed a third-party management company to oversee the property . . . before [it] was transferred to the ultimate purchasers" and that plaintiff "owes a fiduciary duty relative to all such funds . . . ."

Initially, the fact that plaintiff was drawing upon payments made by time share purchasers to a third party lock box administrator does not somehow alter its status as a creditor, nor does it alter the status of Northern Resorts and Northern Hotel as debtors or that of Maloney as a guarantor. Further, the sale of the hotel property was conducted pursuant to an Order of the Bankruptcy Court dated March 28, 2005 (hereinafter the Bankruptcy Court Order) and — as discussed by the Court at length in the November 2012 decision — the Bankruptcy Court retained exclusive jurisdiction to hear and determine any issues arising from that sale. Insofar as the alleged conversion of funds by plaintiff indisputably arose from the sale, the Court declines to consider them. The Court therefore finds that defendants have failed to raise a triable issue of fact and grants that aspect of plaintiff's motion for summary judgment seeking to dismiss the second counterclaim.

Moving now to that aspect of the motion for summary judgment seeking the relief demanded in the amended complaint, the Court finds that plaintiff has established its entitlement to judgment as a matter of law relative to liability and, further, that defendants have failed to raise any issues of fact in opposition thereto (see Creative Culinary Concepts, LLC v Sam Greco Const., Inc., ___ AD3d ___, ___, 2015 NY Slip Op 09163, *1 [2015]; see Waehner v Northwest Bay Partners, Ltd., 30 AD3d 799, 800—801 [2006]; Friends Lbr. v Cornell Dev. Corp., 243 AD2d 886, 887 [1997]). With that said, the Court declines to find that plaintiff is entitled to summary judgment in the amount of $4,412,633.45 — as requested. There are two huge binders of financial documents submitted in support of the motion and defendants have offered equally voluminous documents in opposition. Under the circumstances, the amount due and owing cannot be determined as a matter of law. Rather, a hearing must be held.

Based upon the foregoing, plaintiff's motion for summary judgment is granted to the [*4]extent that (1) defendants' first and second counterclaims are dismissed; and (2) the relief demanded in the amended complaint is granted as to liability only, with a hearing to be held on the amount due and owing. Plaintiff's motion is otherwise denied.

Turning now to the cross motion, it appears that most of the material defendants are seeking relates to their allegations that plaintiff failed to conduct the auction of the hotel property in good faith. Insofar as the Bankruptcy Court Order expressly held that "[t]he sale . . . as authorized and approved . . . is in good faith," the Court finds that the requested discovery is irrelevant. As noted above, if defendants wish to attack the validity of the sale, they must do so in Bankruptcy Court.

Based upon the foregoing, defendants' cross motion is denied in its entirety.

In accordance with CPLR 4317 (b), the Court hereby appoints Malcolm B. O'Hara, Esq. as Referee to hear and report on the amount due and owing to plaintiff. The hearing shall be completed within ninety (90) days of the date of this Decision and Order and a report then submitted to the Court — on notice to counsel — within thirty (30) days of the date of completion of the hearing. Upon receipt of said report, either party may make a motion to confirm.

Simultaneous with submission of the report, the Referee shall submit his request for fees, including costs and disbursements. These fees shall then be paid by plaintiff within thirty (30) days of the date of written approval of the same by the Court, with the Court to add the amount thereof to the Judgment ultimately issued against defendants.

Therefore, having considered the Affirmation of Daniel B. Moar, Esq. with exhibits attached thereto, dated May 29, 2014, submitted in support of the motion; Affidavit of Donald C. Henderson with exhibits attached thereto, sworn to May 29, 2014, submitted in support of the motion; Memorandum of Law of Daniel B. Moar, Esq., dated May 29, 2014, submitted in support of the motion; Affidavit of Barry C. Maloney with exhibits attached thereto, sworn to September 10, 2014, submitted in opposition to the motion; Memorandum of Law of James M. Brooks, Esq., dated September 10, 2014, submitted in opposition to the motion;^[FN3] Affidavit of Barry C. Maloney with exhibits attached thereto, sworn to September 10, 2014, submitted in support of the cross motion; Memorandum of Law of James M. Brooks, Esq., dated September 10, 2014; submitted in support of the cross motion; Memorandum of Law of Daniel B. Moar, Esq., dated October 9, 2014, submitted in further support of the motion and in opposition to the cross motion; Affirmation of Daniel B. Moar, Esq., dated October 9, 2014, submitted in further support of the motion and in opposition to the cross motion; Memorandum of Law of James M. Brooks, Esq., dated November 5, 2014, submitted in further support of the cross motion, and having heard oral argument on September 4, 2015 with Daniel B. Moar, Esq. appearing in support of the motion and James M. Brooks, Esq. appearing in support of the cross motion, it is hereby

ORDERED that plaintiff's motion for summary judgment is granted to the extent that (1) defendants' first and second counterclaims are dismissed; and (2) the relief demanded in the amended complaint is granted as to liability only, with a hearing to be held on the amount due and owing; and it is further

ORDERED that plaintiff's motion for summary judgment is otherwise denied; and it is further

ORDERED that defendants' cross motion is denied in its entirety; and it is further

ORDERED that Malcolm B. O'Hara, Esq. is appointed as Referee to hear and report on the amount due and owing to plaintiff; and it is further

ORDERED that the hearing shall be completed within ninety (90) days of the date of this Decision and Order and a report then submitted to the Court — on notice to counsel — within thirty (30) days of the date of completion of the hearing; and it is further

ORDERED that upon receipt of said report, either party may make a motion to confirm; and it is further

ORDERED that simultaneous with submission of the report, the Referee shall also submit his request for fees, including costs and disbursements; and it is further

ORDERED that the Referee's fees shall be paid by plaintiff within thirty (30) days of the date of written approval of the same by the Court, with the Court to then add the amount thereof to the Judgment ultimately issued against defendants.

The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated May 29, 2014, the Amended Notice of Motion dated September 10, 2014 and the submissions enumerated above. Counsel for plaintiff is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon defendants in accordance with CPLR 5513.