DECISION ORDER ON MOTION Before the Court is a pre-Answer motion by defendant Navidea Biopharmaceuticals, Inc. (“Navidea”) to dismiss this action for a money judgment pursuant to CPLR §3211(a) (1) and (7) based on documentary evidence and failure to state a cause of action, or pursuant to CPLR §3211(a) (3) based on lack of standing to sue. For the reasons stated below, the motion is granted and the action is dismissed in its entirety with prejudice based on the papers submitted and oral argument conducted via Skype on August 27, 2020. Background Facts On July 25, 2012, defendant Navidea, as Borrower, and plaintiff Platinum-Montaur Life Sciences LLC (“Platinum”), as Lender, entered into a Loan Agreement wherein Platinum agreed to extend loans to Navidea via a nonrevolving draw credit facility that allowed Navidea to take draws against the credit facility, up to certain limits (NYSCEF Doc. No. 31). All such draws were to be evidenced by Navidea’s issuance of a promissory note to Platinum. Pursuant to the Loan Agreement, Navidea issued a promissory note in favor of Platinum on July 25, 2012 (the same date as the Loan). That note was amended several times, culminating in the Note at issue dated May 15, 2015. The terms of the Note are not contested, and Navidea included a copy of the Note in its SEC disclosures, which appears to be the only copy found. Under the Note, Navidea agreed to pay to Platinum the lesser of $35M or the collective amount of all draws advanced to Navidea by Platinum. As particularly significant for this motion, the Note provided that it could be assigned by Platinum and its successors or assigns “in whole or in part.” By way of an Assignment Agreement effective March 22, 2016, Platinum purported to assign certain assets of Platinum-Montaur to its affiliate Platinum Partners Credit Opportunities Master Fund, LP (“PPCO”). Navidea was not a party to the Assignment Agreement. At some point thereafter, Navidea paid approximately $7M to PPCO related to the Note. Platinum claims here that Navidea still owes plaintiff a balance of approximately $1.9M under the Note, and it seeks to recover that sum pursuant to its breach of contract cause of action, or in the alternative based on a claim of unjust enrichment (see Complaint, NYSCEF Doc. No. 2). The basis for the claim is Platinum’s assertion that the Assignment Agreement was partial only, that Platinum assigned to PPCO only a portion of the monies due from Navidea under the Note, that Navidea’s payment of $7M to PPCO satisfied only the portion of the debt that had been assigned by Platinum to PPCO, and that Platinum’s remainder interest was never satisfied and remains due and owing today. Navidea disagrees, maintains that the Assignment Agreement transferred the entire debt, and that the debt was satisfied in full by Navidea’s $7M payment to PPCO. Therefore, the issue on this motion is whether the Assignment Agreement covered the entire debt or was only partial. The precise issue was decided in favor of Navidea by United States District Judge Valerie Caproni in an October 31, 2018 Decision and Order granting Navidea’s motion to dismiss Platinum’s claims in this action after this case had been removed to the federal court in the Southern District of New York [17-CV-9591 (VEC), NYSCEF Doc. No. 27]. After reviewing the specific language in the Assignment Agreement and considering the parties’ arguments, which included an offer of extrinsic evidence from Platinum, the Court held (at pp 9-10) that the Assignment Agreement “unambiguously transferred the entirety of Platinum-Montaur’s interest, whatever it may have been, to PPCO.” Therefore, the Court declined to consider on the merits Platinum’s offer of extrinsic evidence to purportedly show that the parties had intended for the assignment to be partial only. On appeal, the Second Circuit vacated Judge Caproni’s order and remanded the case to the lower court, finding that the trial court had erred in reaching the merits before determining that the court had jurisdiction to proceed. Platinum-Montaur Life Sciences LLC v. Navidea Pharmaceuticals Inc., 943 F.3d 613 (2019). Upon returning to the District Court, counsel agreed to a remand to this Court “on the basis that complete diversity does not exist between the parties under 28 U.S.C. §1332″ and Judge Caproni issued an order accordingly on February 21, 2020 (NYSCEF Doc. No. 19). Promptly upon remand, Navidea filed the instant motion to dismiss this action on the exact same grounds that supported Navidea’s motion before Judge Caproni Analysis Although the decision by Judge Caproni has no precedential value because it has been vacated, this Court finds Judge Caproni’s analysis to be thorough, thoughtful, and persuasive, and this Court finds in favor of Navidea for the same reasons that Judge Caproni did. The analysis necessarily begins with an examination of the Assignment Agreement, which is at the heart of the parties’ dispute. The Assignment Agreement is a straightforward two-page document with a signature page and then a single page Exhibit A attached. Pursuant to paragraph 1 of the Assignment Agreement, Platinum agreed that it, as Assignor, “does hereby sell, transfer, convey, and assign, set over and otherwise convey to the Assignee [PPCO] all of its right, title, and interest in, to and under the Asset set forth opposite its name on Exhibit A hereto…” (bold and italics added). The Assignment expressly included future accruals, explicitly describing the Asset being transferred as “including, to the extent applicable, (a) all payments paid in respect thereof and all monies due, to become due or paid in respect thereof accruing on and after the Effective Date and all liquidation proceeds and recoveries thereon.” The “Effective Date” was defined as March 22, 2016. The Asset was in turn described in Exhibit A as the “[e]ntirety of the Subordinated Promissory Note, dated July 25, 2012 (as amended), issued by Navidea Biopharmaceuticals, Inc. to Platinum-Montaur Life Sciences, Inc. in the initial principal amount of $6,650,869.35″ (emphasis added). In exchange for the rights to the Navidea Asset, PPCO agreed to pay $7,022,715.21, which was, according to Exhibit A to the Assignment Agreement, the sum of the principal indebtedness and the then accrued interest. In support of its motion to dismiss, Navidea asserts that the Assignment Agreement is clear and unambiguous on its face in its transfer of the whole (and not just a part) of the Asset. Navidea relies in particular on language in the Assignment that the Assignor was conveying “all of its right, title, and interest in, to and under the Asset” covering the “[e]ntirety of the Subordinated Promissory Note” including “all monies due, to become due or paid in respect thereof accruing on and after the Effective Date.” Citing cases such as Ellington v. EMI Music, Inc., 24 NY3d 239, 244-45 (2014), Navidea also points to the well-established rules of contract construction, which have repeatedly been stated by the Court of Appeals: Where the terms of a contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving a practical interpretation to the language employed and reading the contract as a whole…The words and phrases used by the parties must, as in all cases involving contract interpretation, be given their plain meaning…The best evidence of what parties to a written agreement intend is what they say in their writing…a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms…(internal citations and quotation marks omitted). In opposition, Platinum argues that an ambiguity is created by the “fact” that the outstanding principal balance and accrued interest on the Note was in reality greater than the amount stated in the Assignment Agreement. Platinum points to various pieces of extrinsic evidence in an attempt to show that the Assignment was partial only and that it left Platinum with a remainder interest of approximately $1.9M, which Platinum seeks to recover through this suit. At oral argument and in its papers, Platinum’s counsel pointed this Court to Kass v. Kass, 91 NY2d 554, 566 (1998), wherein the Court of Appeals instructed that the trial court, when interpreting a written agreement, “should examine the entire contract and consider the relation of the parties and the circumstances under which it was executed. Particular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby. Form should not prevail over substance and a sensible meaning of words should be sought…” (internal citations and quotation marks omitted). The Kass case involved a particularly unique set of facts wherein the divorce court was asked to interpret writings executed by the parties in connection with the in vitro fertilization (IVF) procedure to determine the relative rights of the husband and wife. Clearly, that fact pattern has no relevance here. But the rules of contract construction articulated by the Kass court in 1998 do not differ materially from those articulated by the Court of Appeals in 2014 in the Ellington case discussed above. Giving the words in the Assignment Agreement their ordinary meaning, and reading them in the context of the whole, the Court finds that the document is unambiguous and the only reasonable interpretation of the Assignment Agreement is that Platinum transferred to PPCO Platinum’s entire interest in the Navidea Note, leaving no remainder interest to support any recovery by Platinum here. Based on this analysis, the Court grants defendants’ motion to dismiss the first cause of action sounding in breach of contract based on the unambiguous documentary evidence (the controlling Assignment Agreement) and failure to state a claim. The second cause of action sounding in unjust enrichment is barred by the existence of the written agreement and is dismissed as duplicative of the contract claim. See Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 NY2d 382, 388 (1987); Cerberus Intl.., Ltd. v. BancTec, Inc., 16 AD3d 126, 127 (1st Dep’t 2005). In light of this holding, no reason exists for the Court to address the argument that plaintiff has no standing to bring this suit to recover monies allegedly due under the Note when it purportedly is not in possession of the original Note. Accordingly, it is hereby ORDERED that the motion by defendant Navidea Biopharmaceuticals, Inc is granted and the Clerk is directed to enter judgment dismissing this action with prejudice. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: September 2, 2020
