John W. Cowper Co. v. Buffalo Hotel Development Venture

— Order unanimously reversed, with costs, and motion granted. Memorandum: Plaintiff Cowper instituted this action for breach of contract and foreclosure of a mechanic’s lien to recover sums due under a contract with Buffalo Hotel Development Venture and its sole general partner, Clement Chen, Jr., for construction of the Buffalo Hilton Hotel and parking garage. In its eighth cause of action, plaintiff alleges that defendants intentionally withheld payment in order to invest such funds at high interest rates, as a result of which plaintiff was forced to borrow at prime rates in order to meet its cash flow demands. Plaintiff’s eighth cause of action, seeking an equitable remedy to recover the sums expended, must be dismissed. The parties provided in their contract that, in the event that defendants failed to make timely payments, *1184any payments due would bear interest “at the legal rate prevailing at the place of the Project.” Plaintiff claims, however, that recovery at the prevailing rate will not compensate for the cost it incurred when it was forced to borrow in an expensive money market, whereas defendants’ high-yield investments brought returns worth considerably more than interest under the contract. Plaintiff’s remedy lies with the Legislature, not with the courts (see Two Clinton Sq. Corp. v Computerized Recovery Systems, 84 AD2d 911). (Appeal from order of Supreme Court, Erie County, J. B. Kane, J. — dismiss cause of action.) Present — Dillon, P. J., Hancock, Jr., Doerr, Denman and Boomer, JJ.