FILED: NEW YORK COUNTY CLERK 05/13/2024 11:32 PM
`NYSCEF DOC. NO. 45
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`INDEX NO. 656538/2023
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`RECEIVED NYSCEF: 05/13/2024
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`---------------------------------------------------------------------X Index No.: 656538/2023
`NORTHWIND GROUP and NW 37-21 32ND LENDER
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`LLC,
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`REPLY
`(Motion Sequence 003)
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`Plaintiff,
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`-against-
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`SHANGRI-LA ASTORIA INC., XUAN CHENG,
`KEVIN YU, AND BIN LIN,
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`Defendants.
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`REPLY MEMORANDUM OF LAW OF DEFENDANT XUAN CHENG IN
`FURTHER SUPPORT TO HER MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
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`Minyao Wang, Esq.
`Alyssa Rodriguez, Esq.
`LEWIS BRISBOIS BISGAARD & SMITH LLP
`Attorneys for Defendant XUAN CHENG
`77 Water Street, Suite 2100
`New York, New York 10005
`(212) 232-1300
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`TABLE OF CONTENTS
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`PRELIMINARY STATEMENT .................................................................................................... 1
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`ARGUMENT .................................................................................................................................. 4
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`I.
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`II.
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`III.
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`The Term Sheet Lacks The Clear Language To Make NW 37-21 32nd
`Lender LLC An Intended Third Party Beneficiary ................................................. 4
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`Plaintiffs Are Not Entitled To Legal Fees .............................................................. 6
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`Plaintiffs’ Speculative and Unsupported Fee Claim Regarding the
`Break-Up Fee Fails As A Matter of Law. ............................................................. 10
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`IV. Ms. Cheng Is Not Liable for Breaching Any Implied Good Faith
`Negotiation Requirement ...................................................................................... 12
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`CONCLUSION ............................................................................................................................. 15
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Amsterdam Hosp. Grp., LLC v. Marshall-Alan Assocs., Inc.,
`120 A.D.3d 431 (1st Dept. 2014) .............................................................................................. 10
`
`Artificial Intelligence Techs. Corp. v. Robotic Ventures LLC,
`2019 NY Slip Op 32522(U) (Sup. Ct., N.Y. Cnty. Aug. 22, 2019) .......................................... 11
`
`Bodum USA, Inc. v. Perez,
`148 A.D.3d 644 (1st Dep’t 2017) .............................................................................................. 10
`
`Breytman v. Olinville Realty, LLC,
`54 A.D.3d 703 (2nd Dept. 2008) ............................................................................................... 12
`
`Comm’r of the Dep’t of Soc. Servs. of the City of N.Y. v. N.Y.-Presbyt. Hosp.,
`164 A.D.3d 93 (1st Dep’t 2018) .............................................................................................. 5, 6
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`Dormitory Auth. v. Samson Constr. Co.,
`30 N.Y. 3d 704 (2018) ......................................................................................................... 4, 5, 6
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`Dunkin' Donuts of Am., Inc. v. Liberatore,
`526 N.Y.S.2d 141 (2d Dep’t 1988) ........................................................................................... 14
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`Gordon v Dino De Laurentiis Corp.,
`141 A.D. 2d 435 (1st Dep’t 1988) ............................................................................................. 11
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`Gottlieb v. Such,
`293 A.D.2d 267 (1st Dep’t 2002) ................................................................................................ 7
`
`Hooper Assoc. v. AGS Computers,
`74 N.Y.2d 487 (1989) .................................................................................................................. 7
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`Key Equip. Fin. v. South Shore Imaging, Inc.,
`69 A.D.3d 805, 893 N.Y.S.2d 574 ............................................................................................ 14
`
`Konstantin v. Certain Underwriters at Lloyd's London,
`2018 NYLJ LEXIS 535 (Sup. Ct., N.Y. Cnty. Jan. 24, 2018) .................................................. 11
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`LaSalle Bank v. Ernst & Young,
`285 A.D. 2d 101 (1st Dep’t 2011) ............................................................................................... 4
`
`Levine v. Infidelity, Inc.,
`2 A.D.3d 691 (2d Dep’t 2003) ..................................................................................................... 6
`
`Mira v. Harder,
`177 A.D.3d 426 (1st Dep’t 2019) .............................................................................................. 11
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`MK W. St. Co. v. Meridien Hotels, Inc.,
`184 A.D.2d 312 (1st Dep’t 1992) ................................................................................................ 6
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`Parker Waichman LLP v. Squier, Knapp & Dunn Commc'ns, Inc.,
`138 A.D.3d 570(1st Dept. 2016) ............................................................................................... 11
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`Pitcock v Kasowitz, Benson, Torres & Friedman LLP,
`74 A.D. 3d 613 (1st Dep’t 2010) ............................................................................................... 11
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`Roldan v. Allstate Ins. Co.,
`149 A.D.2d 20 (2nd Dep’t. 1989) .............................................................................................. 12
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`Saco I Tr. 2006-5 v. EMC Mortg. LLC,
`2014 NY Slip Op 31432(U) (Sup. Ct., N.Y. Cnty. May 29, 2014) ............................................. 7
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`Saratoga Schenectady Gastroenterology Assocs., P.C. v. Bette & Cring, LLC,
`83 A.D.3d 1256 (3rd Dep’t 2011) ............................................................................................... 6
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`State of Cal. Pub. Employees' Retirement Sys. v Shearman & Sterling,
`95 N.Y.2d 427 (2000) .................................................................................................................. 4
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`180 Water St. Assocs., L.P. v. Lehman Bros. Holdings, Inc.
` 7 A.D.3d 316, 317 (1st Dep’t. 2004) ......................................................................................... 13
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`Yellow Book of New York, Inc. v. Shelley,
`904 N.Y.S.2d 216 (2d Dep’t 2010) ........................................................................................... 14
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`Defendant Xuan Cheng (“Ms. Cheng”) respectfully submits her reply in support of her
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`motion (the “Motion”) to dismiss the complaint filed by Northwind Group and NW 37-21 32nd
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`Lender, LLC (together “Plaintiffs”) and in response to Plaintiffs’ opposition to her motion to
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`dismiss.1
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`PRELIMINARY STATEMENT
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`The Court should grant the Motion in full. The meandering Opposition, replete with
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`inapposite case-law and outright factual misstatements, does not come close to rebutting the
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`arguments advanced in the Motion for dismissal.
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`First, Plaintiffs do not and cannot contest that NW 37-21 32nd Lender, LLC is not a party
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`to the Term Sheet. They instead fall back on the third-party beneficiary doctrine, as Ms. Cheng
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`foreshadowed in her opening brief, see Motion at 6 n.2. But the requirements for invoking this
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`doctrine under New York law are exacting. See id. Among other things, there must be evidence
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`on the face of the Term Sheet that the parties intended for a third party to have the right to enforce
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`the rights and remedies of the Term Sheet. But here, all the Term Sheet says is that the loan would
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`be made by an unnamed affiliate of Northwind Group. It says nothing about permitting that
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`unnamed affiliate to enforce the rights under either the Term Sheet or the still-to-be negotiated and
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`(never-consummated) loan. There is no basis whatsoever to infer the enforcement intent necessary
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`to invoke third party beneficiary status. Therefore, NW 37-21 32nd Lender, LLC does not have
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`standing and must be dismissed as a plaintiff.
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`Second, the Complaint asserts that Plaintiffs are entitled to legal fees for bringing this
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`litigation. Ms. Cheng explained convincingly in her brief that the fee-shifting provision in the
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`1 Any capitalized terms not further defined herein shall have the meanings ascribed to them in the
`Motion.
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`Term Sheet does not permit this result because only litigation brought by Shangri-La or a
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`Guarantor is subject to that provision. Motion at 7-8. The Opposition does not quarrel with this
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`argument. It implicitly concedes that Ms. Cheng is correct. Plaintiffs instead change tack
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`completely and argue that Ms. Cheng is liable for Plaintiffs’ legal fees because another defendant,
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`Bin Lin, represented by separate counsel, has lodged counterclaims against Plaintiffs which are
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`currently the subject of a pending motion to dismiss. Putting aside the fact that Plaintiffs cannot
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`amend a complaint through motion practice, this newly revised claim for fees again fails on the
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`merits. Counterclaims do not fall within the list of actions that would trigger liability for legal fees
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`under the Term Sheet. And the structure and syntax of the Term Sheet also compel the conclusion
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`that Ms. Cheng is not responsible for fees if another Guarantor (here, Ms. Lin) files counterclaims
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`against Northwind without Ms. Cheng’s involvement, control or consent.
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`Third, Plaintiffs assert in one conclusory sentence in the Complaint that Defendants
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`breached the exclusivity provision of the Term Sheet. Cases discussed in the opening brief and in
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`this brief firmly establish that this woeful pleading, bereft of any factual allegations, does not meet
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`the standard for surviving a motion to dismiss. Plaintiffs have no meaningful response except to
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`argue that New York law permits pleading upon information and belief. This is an irrelevant
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`distraction. Plaintiffs’ claim fails not because they plead upon information and belief, but because
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`they plead nothing of substance, under whatever guise.
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`Fourth, Plaintiffs’ feeble attempt to save their breach of the implied duty to negotiate in
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`good faith claim should be rejected out of hand. Because Plaintiffs have no effective response to
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`the argument that there is no implied duty to negotiate under the Term Sheet, they cite to cases
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`where the parties crafted an express provision to negotiate in good faith. Plaintiffs’ forced apple-
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`to-orange comparison is therefore unavailing. Moreover, Ms. Cheng has established in her
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`opening brief that because her obligations as a guarantor are narrowly construed as a matter of
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`New York law, she is not liable for the Borrower’s duty to negotiate in good faith obligation, to
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`the extent that one existed. Motion at 11. Plaintiffs cannot counter this dispositive argument which
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`is based on firmly-rooted New York law. They now desperately and misleadingly attempt to recast
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`Ms. Cheng as something more than a Guarantor, in violation of both the plain terms of the Term
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`Sheet and rudimentary American corporate law.
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`For the avoidance of doubt, Ms. Cheng does not dispute that she and other defendants in
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`this action should, consistent with the Term Sheet, reimburse Northwind for the reasonable and
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`documented expenses Northwind incurred in connection with the unsuccessful loan transaction
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`with Shangri-La. But Northwind (i) asserts that it incurred over $150,000 in legal fees over a ten
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`day period to revise essentially boiler-plate loan documents, and (ii) has refused to provide a single
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`time entry to substantiate this exorbitant claimed amount, despite repeated requests by Ms. Cheng
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`to Nordwind for this basic information.
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`Northwind Group claims that “it is a real estate private equity firm in Manhattan with over
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`$3.0 billion in AUM of equity and debt investments in residential, commercial, senior living &
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`healthcare properties.2” Rather than providing very basic information to establish that it should be
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`in good conscience entitled to $150,000 in fees, Northwind elected to exploit its vastly more
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`superior resources and better access to the U.S. legal system to browbeat Shangri-La, a corporate
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`borrower composed of three Chinese-born principals (i.e., the Guarantors under the Term Sheet),
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`two of whom do not speak basic English. Northwind’s tactical objective in concocting additional
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`legal claims that do not withstand basic scrutiny is to intimidate its relatively unsophisticated
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`foreign-born adversaries, through the specter of substantial legal exposure, into paying its
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`2 https://www.northwind-group.com/about
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`exorbitant legal invoice, in the amount of $150,000, without having to provide any time entries.
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`This cynical use of the U.S. legal system should not be accepted. This Court should cabin this
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`dispute to a dispute about whether Northwind’s asserted legal fees are reasonable and nothing
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`more.
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`I.
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`
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`ARGUMENT
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`The Term Sheet Lacks The Clear Language To Make NW 37-21 32nd Lender LLC
`An Intended Third Party Beneficiary
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`NW 37-21 32nd Lender LLC (“NW Lender”) cannot assert third-party beneficiary status
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`under the Term Sheet because the Term Sheet lacked the clear language required by New York
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`law stating that it was intended to benefit a third party. LaSalle Bank v. Ernst & Young, 285 A.D.
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`2d 101, 108-09 (1st Dep’t 2011) (stating that “[a]bsent clear contractual language evincing such
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`intent, New York courts have demonstrated a reluctance to interpret circumstances to construe
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`such an intent.” More specifically, there must be clear contractual language stating (1) the
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`existence of a valid and binding contract between other parties; (2) that the contract was intended
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`for the third party’s benefit; and, (3) that the benefit to the third party “is sufficiently immediate,
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`rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate
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`him if the benefit is lost.” State of Cal. Pub. Employees' Retirement Sys. v Shearman & Sterling,
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`95 N.Y.2d 427, 434-35 (2000). It is long established under New York law that an intent to benefit
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`the third party must be shown on the fact of the contract, and absent such intent, the third party is
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`merely an incidental beneficiary with no right to enforce the particular contract. Dormitory Auth.
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`v. Samson Constr. Co., 30 N.Y. 3d 704, 710 (2018) (holding that the city was not an intended
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`beneficiary of the contract because “contract does not expressly name the City as an intended third-
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`party beneficiary nor authorize the City to enforce any obligations thereunder.”). In that case, the
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`state’s highest court cited with approval to a fact pattern discussed in the Restatement of Contracts
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`for the proposition that a third party which may merely benefit from the enforcement of a contract
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`does not have third-party beneficiary standing to enforce that contract. Id.
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`NW Lender’s reliance on Comm’r of the Dep’t of Soc. Servs. of the City of N.Y. v. N.Y.-
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`Presbyt. Hosp., 164 A.D.3d 93, 94, 103 (1st Dep’t 2018) is seriously misplaced. That case
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`reiterates the long-standing rule, discussed above, that “[a]n intention of the parties to a contract
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`to benefit a third party, thereby conferring on the third party the right to enforce the contract, will
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`be found only when it is clear from the language of the contract that there was an intent to permit
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`enforcement by the third party.” Id. at 94 (emphasis added). In that case, a patient and a New
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`York area hospital entered into an agreement to settle a malpractice case. Under the terms of the
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`settlement agreement, the hospital “assume[d] full responsibility for any monies which are
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`ultimately found to be due to Medicaid.” Id. at 99. Thereafter, the government agency responsible
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`for Medicaid recoupment sued the hospital for overpayments. Id. at 96. The First Department
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`concluded that the sentence providing for the full assumption of responsibility by the hospital to
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`Medicaid satisfied the requirement for evidence of the intent to permit enforcement. This
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`provision “plainly contemplates that ‘performance is to be rendered directly to [Medicaid agency],
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`a reliable indication that ‘the [Medicaid agency] is deemed an intended beneficiary of the covenant
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`and is entitled to sue for its breach.’” Id. at 99. The First Department held that had the hospital
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`only agreed to indemnify the patient its Medicaid overpayment liability, then the test for third
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`beneficiary status would not have been met. Id. But under the provision of the settlement
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`agreement, the hospital “agreed to act as a surety for any liability that [patient] might conceivably
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`have to reimburse Medicaid. Thus, this case presents one of the paradigmatic situations in which
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`the intention of the parties to the contract is to confer a benefit on the third party, thereby allowing
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`a direct action by the third party against the promisor.” Id. at 100.
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`This case is nothing remotely comparable. All the NW Lender argues is that the Term
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`Sheet contemplated that an unnamed affiliate would serve as a conduit for the eventual potential
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`loan. This action is not even an action to collect on the loan, which was never consummated.
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`Nothing in the Term Sheet can be construed by any stretch of the imagination as permitting that
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`unnamed affiliate to take enforcement action against the other parties for alleged breach of the
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`Term Sheet over antecedent negotiations for the loan. As the Dormitory case established, NW
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`Lender does not qualify as an intended third third-party beneficiary because the Term Sheet did
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`not name it as such or authorized it to enforce the rights of the Term Sheet. The fact that NW
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`Lender may derive a benefit under the Term Sheet is not sufficient. It is merely an “incidental
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`beneficiary.”
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`In sum, NW Lender has no standing to be a plaintiff and must be dismissed from the case.3
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`Plaintiffs Are Not Entitled To Legal Fees
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`II.
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`Under the American rule, a party to civil litigation is responsible for its legal fees absent a
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`clear contractual provision to the contrary. Levine v. Infidelity, Inc., 2 A.D.3d 691, 692 (2d Dep’t
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`2003) (cleaned up). Because this rule is deeply embedded in the United States as a matter of public
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`policy, a contractual provision permitting the prevailing party to recover legal fees that are “’
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`3 Plaintiffs’ other cases (MK W. St. Co. v. Meridien Hotels, Inc., 184 A.D.2d 312, 313 (1st Dep’t
`1992) and Saratoga Schenectady Gastroenterology Assocs., P.C. v. Bette & Cring, LLC, 83
`A.D.3d 1256, 1257-58 (3rd Dep’t 2011)) are a distraction because the main issue here is not
`whether under New York law the proposed third party beneficiary needed to be known or formed
`as a corporate entity when the contract was signed. The determining issue was whether the contract
`evidenced an intent for the proposed third party beneficiary to enforce the contract. Plaintiffs
`advance no relevant argument directed to this critical issue.
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`incidents of litigation’ should be construed strictly.” Gottlieb v. Such, 293 A.D.2d 267, 268 (1st
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`Dep’t 2002) (cleaned up) (emphasis added). In other words, an agreement to pay the attorney’s
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`fee of another “should not be found unless it can be clearly implied from the language and purpose
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`of the entire agreement and the surrounding facts and circumstances.” Hooper Assoc. v. AGS
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`Computers, 74 N.Y.2d 487, 491–492 (1989) (emphasis added).
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`As pointed out in Ms. Cheng’s opening brief (Motion at 7-8), the Term Sheet provides that
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`Defendants are only liable for Northwind’s “legal fees in the event Sponsor, Borrower or Guarantor
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`is unsuccessful in any action, suit, proceeding or litigation brought against Lender.” Wang
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`Aff. Ex. A at 5 (emphasis added). There is no other circumstance in which Defendants are
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`contractually responsible for Northwind’s legal fees. It cannot be disputed that Northwind
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`brought this litigation against Defendants when it filed its Complaint on December 29, 2023.
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`Therefore, the limited fee-shifting provision in the Term Sheet plainly does not apply.
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`Plaintiffs in their Opposition do not contest this point. By failing to do so, they concede
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`that when they brought this action on December 29, 2023, they had no good-faith legal or factual
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`basis to seek legal fees in Paragraph 22 of their Complaint. Plaintiffs’ only argument is because
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`after the filing of the Complaint (on January 25, 2024), co-defendant Bin Lin (through separate
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`counsel) filed her own counterclaims as a response to this litigation, they are now entitled to seek
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`legal fees from Ms. Cheng. Plaintiffs’ belated attempt to reinvent this portion of their Complaint
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`fails for multiple reasons.
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`As an initial matter, a plaintiff opposing a motion to dismiss and a court reviewing such a
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`motion are bound by the four corners of the complaint. A plaintiff cannot amend the complaint
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`under the guise of an opposition to a motion to dismiss. Saco I Tr. 2006-5 v. EMC Mortg. LLC,
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`2014 NY Slip Op 31432(U), *9 (Sup. Ct., N.Y. Cnty. May 29, 2014) (“While Plaintiff attempts to
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`bolster its claim with new factual allegations in its briefing regarding EMC's capitalization and
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`reserves, Plaintiff cannot amend the Complaint through an opposition brief.”). Here, Plaintiffs are
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`trying to do exactly that. They brought a claim for relief based on an assertion (that they are
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`entitled to fees under the jurisdictional section of the Term Sheet) that they are no longer willing
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`to stand on. They are instead trying to make a claim based on a development that occurred after
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`the filing of the Complaint, namely Ms. Lin’s counter-claims. An opposition to a motion to dismiss
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`is not the proper vehicle for Plaintiffs to recast a material portion of their breach of contract claim.
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`Putting the procedural impropriety aside, Plaintiffs’ re-invented claim for legal fees again
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`fails on the merits. The fee-shifting provision in the Term Sheet is not reasonably susceptible to
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`the self-serving interpretation that Plaintiffs are advocating here, especially when this Court
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`applies the rule that fee-shifting provisions are construed narrowly in favor of the person
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`responsible for payment. First, Plaintiffs try to shoehorn Ms. Lin’s counter-claims into “any
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`action, suit, proceeding or litigation brought against Lender.” This effort is unpersuasive.
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`Northwind was the master of the Term Sheet here. Had it intended the inclusion of counter-claims
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`to this list, it could have simply added this word to the Term Sheet. The omission of the word
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`“counter-claim” is a compelling indication that the parties to the Term Sheet did not intend the
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`filing of a counter-claim by a defendant to serve as a basis for trigging liability for Northwind’s
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`legal fees. Moreover, the principle of “ejusdem generis” forecloses Plaintiffs’ interpretation of
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`the fee-shifting provision in the Term Sheet. The items listed in that provision (action, suit,
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`proceeding or litigation) have the connotation of starting a new case before a court or a tribunal.
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`A counter-claim, of course, is not commenced by filing a new case. It is added to an existing case.
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`Plaintiffs’ attempt to add counter-claims to the list of triggering events in the fee-shifting provision
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`is therefore a belated attempt to amend the Term Sheet. This Court should not deviate from a plain
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`language interpretation here.
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`Second, even if the fee-shifting provision in the Term Sheet encompasses counterclaims
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`(and it does not for the reasons just discussed), it is clear that Ms. Cheng is not responsible for
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`counter-claims brought by another defendant, Ms. Lin, through separate counsel. The grammar
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`and syntax of the fee-shifting provision compel this conclusion, especially given the requirement
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`to construe fee-shifting provisions strictly in favor of the person liable for payment. The key
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`phrase in the fee-shifting provision is “in the event Sponsor, Borrower or Guarantor is unsuccessful
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`in any action, suit, proceeding or litigation brought against Lender.” (emphasis added).
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`Ms. Cheng is not pursuing the counter-claims at issue. Ms. Lin is. The counter claims are
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`Ms. Lin’s and Ms. Lin’s alone. Whatever the ultimate disposition of Ms. Lin’s counterclaims, it
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`is not Ms. Cheng’s success or failure. Ms. Cheng is not responsible for the decisions of another
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`defendant over which she has no control. Nothing in the Term Sheet permits this interpretation.
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`Throughout the Term Sheet, Northwind has demonstrated that it knows how to establish joint and
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`several liabilities for Guarantors when it intends to do so. The introductory paragraph on page one
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`makes it clear that a Guarantor is jointly and severally liable for “Loan Costs”; “Deposit”;
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`“Exclusivity”; “Brokers”, Break Up Fee”; and “Confidentiality.” Conspicuously absent from this
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`list is legal fees triggered by the conduct of the Sponsor, the Borrower or another guarantor. See
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`also Term Sheet at 2, 4, 5 (discussing joint and several liabilities for things other than legal fees).
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`The Term Sheet is therefore clear that a Guarantor is not responsible for any legal fee liability
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`triggered by another Guarantor.
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`Ms. Cheng is a party to the Term Sheet only in her capacity as a guarantor. As discussed
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`in her opening brief (Motion at 11), the scope of a guarantor’s liability is narrowly construed as a
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`9
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`matter of New York law. There is no basis in the text of the Term Sheet to infer that Ms. Cheng
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`has agreed to serve as a guarantor for Ms. Lin’s unilateral conduct.4
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`Plaintiffs’ Speculative and Unsupported Fee Claim Regarding the Break-Up Fee
`Fails As A Matter of Law.
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`III.
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`The Complaint alleges in paragraph 15 of their Complaint that “[o] information and belief
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`, Defendants have failed to deal exclusively with Plaintiff during the No-Shop Period with respect
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`to financing the Property, in breach of their obligations under the Term Sheet.” First, the assertion
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`made in the initial sentence of Paragraph 15 of the Complaint is simply untrue and is conclusively
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`rebutted by email communications between the parties in November 2023.5
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`Second, Plaintiffs offer nothing except a single conclusory sentence devoid of any factual
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`support for its claim concerning the alleged breach of the exclusivity provision. This is simply
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`insufficient even under the lenient pleading standard at the motion to dismiss stage. Bodum USA,
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`Inc. v. Perez, 148 A.D.3d 644, 645 (1st Dep’t 2017) (granting motion to dismiss because
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`4 Indeed, at most Defendants are responsible only for the fees related to Ms. Lin’s counter-claims.
`There is no basis whatsoever under the Term Sheet to extend liability for fees beyond Northwind’s
`defense of the counterclaims brought by Ms. Lin. Northwind’s affirmative prosecution of its
`claims against Defendants is not subject to fee shifting pursuant to the Term Sheet under any
`stretch of the imagination.
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`5 Contrary to Plaintiffs’ assertion (see Oppo. at 6 n.2), the First Department has expressly and
`repeatedly held that emails between the parties can in fact support a motion to dismiss. See .e.g.,
`Amsterdam Hosp. Grp., LLC v. Marshall-Alan Assocs., Inc., 120 A.D.3d 431, 433 (1st Dept. 2014)
`(“emails can qualify as documentary evidence” for a motion to dismiss); Here, Ms. Cheng has
`provided both an email exchange and a signed affirmation. She explained that because Northwind
`demanded Shangri-La to pay millions of dollars to Northwind in order to close the Loan, a
`condition that was not set forth in the Term Sheet and which Shangri-La could not meet. See Dkt
`No. 30, ¶ 5-9. Northwind fails to submit any evidence that rebut this email correspondence. Its
`counsel, who has no first-hand knowledge and therefore is not qualified to speak on the matter,
`attempts to explain away that email in a wholly unconvincing manner (see Opp. at 5). Counsel
`does not even attempt to deny that Northwind demanded Shangri-La to pay millions of dollars in
`reserves, a situation not contemplated by the Term Sheet. The Court should therefore treat Ms.
`Cheng’s email attachment as unrebutted and conclusive evidence.
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`10
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`FILED: NEW YORK COUNTY CLERK 05/13/2024 11:32 PM
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`“[p]laintiff has pleaded nothing but conclusory statements without factual support for its claim.”);
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`Parker Waichman LLP v. Squier, Knapp & Dunn Commc'ns, Inc., 138 A.D.3d 570, 570-71(1st
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`Dept. 2016) (“The complaint’s boilerplate allegations that defendants disclosed confidential
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`information, thereby causing harm, are too vague and conclusory to sustain a breach of contract
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`cause of action”) (citing Gordon v Dino De Laurentiis Corp., 141 A.D. 2d 435, 436 (1st Dep’t
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`1988))(emphasis added); Pitcock v Kasowitz, Benson, Torres & Friedman LLP, 74 A.D. 3d 613,
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`615 (1st Dep’t 2010) “vague, boilerplate allegations of damages . . . insufficient to sustain the
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`causes of action”).
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`This Court has repeatedly noted that a plaintiff will not survive a motion to dismiss by
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`peddling conclusory speculation in his complaint. See Mira v. Harder, 177 A.D.3d 426, 427 (1st
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`Dep’t 2019) (upholding Your Honor’s dismissal of claim because speculative and incredible
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`allegations “are insufficient to state the necessary elements of a cause of action”); Artificial
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`Intelligence Techs. Corp. v. Robotic Ventures LLC, 2019 NY Slip Op 32522(U), *12 (Sup. Ct.,
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`N.Y. Cnty. Aug. 22, 2019) (dismissal warranted because “breach claims are conclusory and
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`factually unsupported” and noting that idle speculation should not open door to discovery.”);
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`Konstantin v. Certain Underwriters at Lloyd's London, 2018 NYLJ LEXIS 535, *8 (Sup. Ct., N.Y.
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`Cnty. Jan. 24, 2018) (“To avoid dismissal of a tortious-interference claim for failure to state a
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`cause of action, a plaintiff must support its claim with more than mere speculation, even though
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`on a motion to dismiss”).
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`Measured by this overwhelming body of case-law, the Complaint’s sole allegation
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`regarding the breach of the Term Sheet’s exclusivity requirement is baseless, conclusory, and
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`speculative. It does not contain the sufficiently particularized allegations from which cognizable
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`cause of action reasonably could be inferred. While the court affords at this stage of the case the
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`11
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`15 of 20
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`FILED: NEW YORK COUNTY CLERK 05/13/2024 11:32 PM
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`INDEX NO. 656538/2023
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`RECEIVED NYSCEF: 05/13/2024
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`pleading a liberal construction and accepts all facts as alleged in the pleading to be true, self-
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`serving legal confusion bereft of any factual support is not a fact for purposes of a m