In Mave Hotel Investors LLC v. TS Worldwide, LLC, MMP&S obtained a dismissal of a Complaint in the Commercial Division of the Supreme Court, New York County, based upon the principle that a lender’s consultant does not owe a duty to a borrower. In this regard, the plaintiff hotel owner/borrower commenced an action against a real estate appraiser retained by the special servicer to the master servicer of plaintiff’s lender, based upon the issuance of three allegedly erroneous real estate appraisals of the hotel. Plaintiff alleges that as a result of the issuance of the appraisals, the hotel loan to value ratio was significantly reduced, thus forcing plaintiff to post $2,000,000 in collateral to maintain its funding. Plaintiff’s Complaint set forth claims sounding in negligence, gross negligence, discrimination, breach of contract, unjust enrichment and deceptive business practices pursuant to General Business Law Â§ 349. Plaintiff alleged that it had the functional equivalent of privity with the appraiser, as the appraiser was a professional firm with knowledge that its appraisals would shape the behavior of the plaintiff by forcing plaintiff to post significant collateral based upon a reduced loan to value ratio. Plaintiff also alleged that the appraisals were discriminatory, in that they assessed the hotel at a reduced value due to the residents of the hotel being members of a legally protected class.
MMP&S successfully argued that the Complaint must be dismissed due to the common law principle that consultants of lenders do not owe a duty to borrowers, and, that plaintiff failed to allege facts necessary to establish that any actions taken, or opinions issued by the appraiser were based upon the presence of the protected class hotel residents. As a result, the Commercial Division granted our motion to dismiss and dismissed the Complaint in its entirety.