Scoolidge, Peters, Russotti & Fox LLP, New York (Peter Fox of counsel), for appellant-respondent.

Schoeman Updike & Kaufman LLP, New York (Beth L. Kaufman of counsel), for Bank of America, N.A, respondent-appellant.

K&L Gates LLP, New York (Brian D. Koosed of counsel), for Wells Fargo, N.A., and another, respondents-appellants.

Order, Supreme Court, New York County (Barry R. Ostrager, J.) entered November 15, 2023, which granted that part of defendants' motions under CPLR 3211 to dismiss plaintiff's first claim for breach of contract and denied dismissal of the second, third, fourth, and sixth claims for declaratory relief, and the fifth claim for unjust enrichment, unanimously affirmed, without costs.

The motion court properly dismissed plaintiff's first claim for breach of contract under the limitation of remedies in section 18.6 of parties' loan agreement. Section 18.6 unambiguously states that "neither Lender nor its agents shall be liable for any monetary damages" arising from the failure "to act reasonably or promptly," and instead plaintiff's "sole remedies shall be limited to commencing an action seeking injunctive relief or declaratory judgment." Contrary to plaintiff's contention, this section is not limited to delays involving defendants' exercise of discretion, nor does the reference to acting "promptly" preclude that section's application to damages arising from allegations that defendants failed to act on a date certain (see e.g. Ladder Capital Fin. LLC v 1250 N. SD Mezz LLC, 211 AD3d 608, 609 [1st Dept 2022]; Base Vil. Owner LLC v Hypo Real Estate Capital Corp., 92 AD3d 541 [1st Dept 2012]). Plaintiff's reliance on nonbinding cases interpreting other states' laws is unavailing, as the courts in those cases determined that the allegations related to intentional conduct rather than unreasonable delay (see e.g. In re NNN 400 Capitol Ctr. 16, LLC, 2018 WL 4849655, 2018 Bankr LEXIS 3085 [D Del, Oct. 4, 2018, Case No. 16-12728(KG)]).

Here, by contrast, the breach of contract claim alleges that the delay in the release of the "Free Rent Reserve Funds" for December 2020 and January 2021 was the result of defendant Bank of America, N.A.'s failure to notify its servicer, defendant Wells Fargo, N.A., of the obligation, and the amounts were eventually refunded in February 2021 and the interest later reimbursed. The amended complaint fails to identify what other damages it incurred as a result of the breach, further warranting dismissal (see Arcidiacono v Maizes & Maizes, LLP, 8 AD3d 119, 120 [1st Dept 2004]).

The court also properly declined to dismiss plaintiff's claim against Bank of America, because it did not utterly refute the allegation that it remained bound by the loan documents despite its delegation of certain duties thereunder. The pooling services agreement, submitted for the first time in reply, postdates at least some of the allegations in the amended complaint, precluding dismissal on the basis of this document (see Procter & Gamble Distrib. Co. v Lawrence Am. Field Warehousing Corp., 16 NY2d 344, 360 [1965]).

Regarding the claims for declaratory relief, the motion court properly determined that dismissal at the pleadings stage was unwarranted, as the amended complaint adequately alleges that the parties agreed to modify the terms of the loan documents through the express [*2]statements of Wells Fargo executives and the parties' course of conduct (see Aiello v Burns Intl. Sec. Servs. Corp., 110 AD3d 234, 245 [1st Dept 2013]). While "waiver should not be lightly presumed and must be based on a clear manifestation of intent to relinquish a contractual protection . . . the existence of an intent to forgo such a right is a question of fact" (Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96, 104 [2006] [internal quotation marks and citation omitted]). Here, the amended complaint alleges that a Wells Fargo vice president expressly stated both orally and in writing that plaintiff could proceed in the manner it did and thereafter did not act inconsistently with the purported new understanding. Those statements, together with plaintiffs' allegations as to the parties' long-term course of conduct, are sufficient to plead a modification of the terms of the loan documents.

As for the unjust enrichment claim, the motion court properly determined that where, as here, "there is a bona fide dispute as to the existence of a contract or the application of a contract in the dispute in issue, a plaintiff may proceed upon a theory of quasi contract as well as breach of contract, and will not be required to elect his or her remedies" (Kramer v Greene, 142 AD3d 438, 441-442 [1st Dept 2016] [internal quotation marks omitted]). As for the sixth claim for a declaratory judgment relating to the imposition of improper fees, defendants did not establish as a matter of law that the challenged fee was intended to be included in a nonexhaustive list of fees permitted under the relevant agreements (see 242-44 E. 77th St., LLC v Greater N.Y. Mut. Ins. Co., 31 AD3d 100, 103-104 [1st Dept 2006]).

We have considered the remaining contentions and find them unavailing. Concur—Moulton, J.P., Scarpulla, Shulman, Higgitt, O'Neill Levy, JJ.