The following e-filed documents, listed by NYSCEF document number (Motion 012) 416, 417, 418, 419, 420, 421, 422, 423, 424, 425, 426, 427, 428, 429, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440, 441, 442, 443, 444, 445, 446, 447, 448, 449, 450, 451, 452, 453, 454, 455, 456, 457, 458, 459, 460, 461, 462, 463, 464, 465, 466, 467, 468, 469, 470, 471, 472, 473, 474, 475, 476, 477, 478, 577, 578, 579, 580, 581, 582, 583, 584, 585, 586, 587, 588, 589, 590, 591, 592, 593, 594, 595, 596, 597, 598, 599, 600, 601, 602, 603, 604, 605, 606, 607, 608, 609, 610, 611, 612, 613, 614, 615, 616, 617, 618, 619, 620, 621, 622, 623, 624, 625, 626, 627, 628, 629, 630, 631, 632, 633, 634, 635, 636 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER. The following e-filed documents, listed by NYSCEF document number (Motion 013) 479, 480, 481, 482, 483, 484, 485, 486, 487, 488, 489, 490, 491, 492, 493, 494, 495, 496, 497, 498, 499, 500, 501, 502, 503, 504, 505, 506, 507, 508, 509, 510, 511, 512, 513, 514, 515, 516, 517, 518, 519, 520, 521, 522, 523, 524, 525, 526, 527, 528, 529, 530, 531, 532, 533, 534, 535, 536, 537, 538, 539, 540, 541, 542, 543, 544, 545, 546, 547, 548, 549, 550, 551, 552, 553, 554, 555, 556, 557, 558, 559, 560, 561, 562, 563, 564, 565, 566, 567, 568, 569, 570, 571, 572, 573, 574, 575, 576, 637, 638, 639, 640, 641, 642, 643, 644, 645 were read on this motion to/for SUMMARY JUDGMENT(BEFORE JOIND). DECISION + ORDER ON MOTION Upon the foregoing documents and for the reasons set forth below, China Construction America Inc., now known as CCA Construction, Inc. (CCA), CSCEC (Bahamas), Ltd. (CSCEC)1, and CCA Bahamas, Ltd.’s (CCAB; CCA, CSCEC, and together with CCAB, hereinafter, collectively, the Defendants) motion (Mtn. Seq. No. 012) for summary judgment is denied. Specifically, the court denies the Defendants’ summary judgment motion to (i) dismiss BML Properties Ltd.’s (BMLP) claims for fraud because they arise out of the Investors Agreement (NYSCEF Doc. No. 582), (ii) limit any damages available to BMLP so as to preclude the recovery of lost profits, (iii) dismiss BMLP’s claims for breach of the reporting duty in Section 4.7 of the Investors Agreement, (iv) alternatively, dismiss BLMP’s reporting claims to the extent they are cognizable as fraud claims because BMLP did not actually or justifiably rely on any misstatements or omissions, (v) dismiss BMLP’s claims as released as part of Baha Mar Ltd.’s (BML) winding-up proceedings in the Bahamas, (vi) dismiss BMLP’s claims as derivative, (vii) dismiss BMLP’s claims for breach of the implied covenant of good faith and fair dealing and unjust enrichment as duplicative, and (viii) dismiss BMLP’s claims for breach of the November 2014 Meeting Minutes (the Meeting Minutes) because BMLP is not a third party beneficiary of the Meeting Minutes. BMLP’s motion (Mtn. Seq. No. 013) for summary judgment is granted with respect to dismissing (x) CSCEC’s counterclaim for breach of contract as to Sections 4.7, 4.8(g), and 4.8(l) of the Investors Agreement, and (y) the Defendants’ affirmative defenses that (i) the claims are subject to a Deed of Novation pursuant to which all rights and claims arising out of the MCC were transferred and discharged (NYSCEF Doc. No. 161, 6), (ii) the claims are subject to a Deed of Release pursuant to which all claims arising from contracts related to the Project were released (id., 7), (iii) BMLP lacks standing to assert derivative claims under the Investors Agreement (id., 9), (iv) BMLP failed to join a necessary party to this action (id., 10), (v) BMLP’s claims were discharged by bankruptcy pursuant to wind-up proceedings in the Bahamas (id., 16), (vi) BMLP’s claims are barred by the statute of limitations (id., 19), and (vii) BMLP’s claims are subject to liquidated damages (id., 23). The underlying facts and circumstances of this case are set forth in the Decision and Order of the Court (Scarpulla, J.), dated January 24, 2019 (the Prior Decision; NYSCEF Doc. No. 154). Familiarity is presumed. Any term used but not otherwise defined shall have the meaning ascribed thereto in the Prior Decision. Briefly, as relevant to the instant motions, on January 13, 2011, BMLP and the Defendants entered into the Investors Agreement, pursuant to which BMLP made an $830 million equity investment into the Project and received 100 percent of BML’s voting shares. Pursuant to the Investors Agreement, BMLP was responsible for BML’s day-to-day management, subject to the direction of the Board of BML. BML’s Board was made up of five members, one nominated by CSCEC and the other four, including the chairman, nominated by BMLP. Pursuant to Section 4.2 of the Investors Agreement, CSCEC was entitled to appoint one member of the Board of BML, and pursuant to Section 4.7 of the Investors Agreement, CSCEC was entitled to appoint five representatives who would be seconded to the Project (collectively, the CSCEC Representatives). Pursuant to Section 4.7 of the Investors Agreement, the CSCEC Representatives were to have reasonable access to the books, records, communications, and other documents of the Project and BML’s staff in order to monitor the Project’s schedule, budget, and similar matters in the interest of BML. The board member appointed by CSCEC was also required to report to the Board of BML as to CSCEC’s findings, concerns, and recommendations. The CSCEC Representatives were required to at all times act in the “best interests” of BML and were required to abide by certain confidentiality and conflicts-of-interest provisions (NYSCEF Doc. No. 582, §4.7). In the Prior Decision, the Court held, among other things, that the fraud claims were not duplicative of the breach of contract claims because (i) the fraud claims relied on misrepresentations of then-current facts regarding the Project, and (ii) the damages sought under the fraud claims were for mitigation expenses and investment efforts based on those misrepresentations, not the contract value (NYSCEF Doc. No. 154, at 21-22). The Appellate Division affirmed, holding that the alleged false statements concerning the Project’s status and the workforce and resources available to meet deadlines were collateral to the contracts (NYSCEF Doc. No. 182, at 2). The Court also held that BMLP’s claims are direct, not derivative claims, because BMLP alleged that CCA, the only other shareholder in BML, did not sustain a proportionate loss to that sustained by BMLP (NYSCEF Doc. No. 154, at 19). This too was affirmed on appeal. Discovery has only served to underscore the wisdom of the Prior Decision. It is now clear that Taizhong “Tiger” Wu, one of the CSCEC Representatives and CCAB’s Executive Vice President approved over 700 workers leaving the Project between December 2014 and February 2015 (i.e., in the final months leading up to the projected date for substantial completion (March 27, 2015) without approval from BMLP despite knowing that those workers may well have helped the Project reach the substantial completion date on time — which it did not (tr at 143, lines 15-25 and at 145, lines 9-19 [NYSCEF Doc. No. 594]). Mr. Wu did this after CCA sent a letter to CSCEC on January 21, 2015 stating that “the project has entered the critical stage of final full-scale shock work” and that “the production situation of the project tis extremely severe, and if the situation cannot be fundamentally reversed, it will cause irreparable and catastrophic losses” (NYSCEF Doc. No. 591). Indeed, CCA made clear that the joint venture partner needed to do the opposite of what Mr. Wu did: We hereby sincerely implore the joint-stock company to strictly order all professional companies participating in the construction to take urgent measures immediately, quickly organize the dispatch of the additional labor force, and dispatch skilled workers and experienced management personnel to the site for the final shock work before the end of January, so as to ensure that the project’s scheduled target of full opening on March 27, 2015 can be achieved. At present, it is imminent to increase the number of personnel in the project (id. [emphasis added]). To put this in context — Sarkis Izmirlian, President of BMLP, witnessed CCA disingenuously (given the plan to divert workers and resources) tell the Prime Minister of the Bahamas and the Chinese Ambassador to the Bahamas that the Project would be finished by March 27, 2015 (tr at 26, lines 10-22 [NYSCEF Doc. No. 505]). Indeed, it is now clear that Mr. Wu sent workers away with the express purpose of causing CCA to stop work so that they could force BML and BMLP to negotiate funding (tr at 330, lines 4-19 [NYSCEF Doc. No. 594]). It is also clear on the fully developed record before the Court that CCA diverted resources and key personnel to other projects in which BML had no interest whatsoever. For example, according to David Liu, one of CCAB’s vice presidents and a CSCEC Representative, while the Project was ongoing, CCAB acquired another resort near to the Project in which BML had no interest (tr at 17, 4-10 and at 52, lines 7-25 [NYSCEF Doc. No. 598]). Allen Manabat, the head scheduler for the Project could not update the schedule for the Project because he was engaged in his work on a project in Panama (NYSCEF Doc. No. 601). It is also clear that the Defendants were actively pursuing their own interests to the detriment of BML and BMLP. By letter dated March 18, 2015, Yuan Ning, President of CCA, wrote to Chen Guacai, Vice President of CSCEC that, to bring BMLP back to the negotiating table, CCA suggested “taking extreme measures such as a complete shutdown of the work” (NYSCEF Doc. No. 583). The next day, CCA instructed its personnel to freeze handing over rooms (NYSCEF Doc. No. 604). By email dated July 6, 2015, from Mr. Liu to, among others, Mr. Wu, Mr. Liu wrote: “[w]e should take advantage of the Bahamas government. If the government, Export- Import Bank of China and CCA join forces, we can turn passive into active!” (NYSCEF Doc. No. 585). Put another way, Mr. Liu saw an opportunity to fundamentally change the relationship between the joint venture partners and worked to cause this to occur. Indeed, at a meeting between the Defendants and the Export-Import Bank of China on September 28, 2015, the Defendants indicated that they should push for the Export-Import Bank of China to be named receiver of the Project so that, among other things, they could “protect the interests of China Construction’s USD $150 million preferred stock” (NYSCEF Doc. No. 607). In other words, the fully developed record now indicates that the Defendants actively sought to remove BMLP from the Project so that they could protect their own investments and to the detriment of the joint venture partner. As is clear, they were successful as this is exactly what occurred. BMLP alleges that the actions of the CSCEC Representatives and the Defendants resulted in delays to the Project and missed deadlines. The MCC initially contemplated a December 2014 substantial completion date. When it became apparent that the December 2014 date would not be met, the parties met in November 2014 in Beijing, China, and agreed that, by March 27, 2015, (i) the Project would be substantially completed, and (ii) the resort would be opened to guests. When the March 27, 2015 opening date was missed, BML allegedly lost money from, among other things, (i) booked reservations that could not be kept, (ii) spending money to stock the resort and hire staff. As a result of the missed deadline, when the Board of BML met on June 29, 2015, the Board (significantly, other than Mr. Izmirlian and Mr. Wu, the representatives of BMLP and the Defendants respectively), voted to file for Chapter 11 bankruptcy on behalf of BML. The Chapter 11 proceedings were subsequently dismissed in favor of winding-up proceedings in the Bahamas. In those winding-up proceedings, CEXIM, BMLP’s lender, took control of BMLP’s shares in BML, forcing BMLP out of the Project, resulting in the total loss of its investment. The Bahamian court approved the sale of the Project to Perfect Luck Assets, Ltd. (Perfect Luck), a Chinese company and subsidiary of CEXIM, and CEXIM remained the financier of the Project. In connection with the wind-up proceedings, certain agreements were entered into between Perfect Luck, BML, and the Defendants, including Amendment No. 9 (NYSCEF Doc. No. 521), the Deed of Release (NYSCEF Doc. No. 531), and the Deed of Novation (NYSCEF Doc. No. 532). Among other things, these agreements and the wind-up proceedings resulted in the release of claims by BML (which BMLP was no longer a part of having been wiped out) and by Perfect Luck against the Defendants in connection with the Project. Perfect Luck subsequently sold the Project to another Chinese Company, Chow Tai Fook, who retained CCA as construction manager, ultimately paying over $700 million to complete the Project, which finally opened in April 2017. Discussion On a motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Failure to make such a showing requires denial of the motion regardless of the sufficiency of the opposing papers (id.). Upon such a showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring trial (id.). I. The Defendants’ motion (Mtn. Seq. No. 012) must be denied As an initial matter, several arguments advanced by the Defendants in support of summary judgment have been heard and rejected in the Prior Decision and by the Appellate Division. Discovery has not provided a factual basis for a different conclusion. The Court notes that inasmuch as BMLP has withdrawn their claims with respect to the November 2014 Meeting Minutes, these claims are dismissed. a. The Claims Are Direct Not Derivative The Defendants argue that they are entitled to dismissal because these claims are derivative and not direct claims. They are not correct. Discovery confirmed that BMLP sustained a disproportionate loss (SFR Holdings Ltd. v. Rice, 132 AD3d 424, 425 [1st Dept 2015]) and that its losses stem from various breaches of duty and contract that the Defendants owed to BMLP. BMLP lost its entire investment, which David Bones, BMLP’s expert, estimates to total $830 million in tangible and intangible assets, including land and leased facilities, improvements, personal property, contracts, approvals, hotel assets, intellectual property, intangible personal property, casino operations and license, and cash (NYSCEF Doc. No. 620, at 9). The Defendants, by contrast, made over $700 million (NYSCEF Doc. No. 619, at 3). b. The Fraud Claims are Not Duplicative and Issues of Fact Remain as to Whether BLMP’s Reliance was Reasonable The Defendants argue that all claims for (i) failure to properly report progress on the Project, and (ii) fraud arise from the Investors Agreement and that therefore the fraud claims must be dismissed as duplicative of the breach of contract claims. This is also not right. The fraud claims are predicated on certain affirmative misrepresentations unrelated to the Investors Agreement made by the Defendants, including, among other things, (i) representing that there was sufficient labor and resources to complete the Project on time when in fact workers were being taken off of the Project, and (ii) asking for additional money to pay subcontractors and then using such money for other purposes having nothing to do with the Contract (e.g., acquiring a Hilton just down the road (NYSCEF Doc. No. 605,
