MEG Holdings, LLC v. Sapphire Power Finance LLC

126 A.D.3d 608, 3 N.Y.S.3d 598

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 24, 2015
• Docket: 653906/12 14614 14613
• Status: Published

Opinion

Order and judgment (one paper), Supreme Court, New York County (Saliann Scarpulla, J.), entered August 6, 2014, to the extent appealed from as limited by the briefs, granting plaintiff summary judgment on its claim for the release of escrow funds, and dismissing defendant Sapphire Power Finance LLC’s counterclaims for indemnification and breach of warranty, unanimously affirmed, with costs.

The indemnification clause in the purchase and sale agree ment (PSA) between plaintiff and defendant Sapphire Power Finance LLC does not reflect an “unmistakably clear” intent to indemnify interparty claims (see Hooper Assoc. v AGS Computers, 74 NY2d 487, 492 [1989]; Gotham Partners, L.P. v High Riv. Ltd. Partnership, 76 AD3d 203 [1st Dept 2010], lv denied 17 NY3d 713 [2011]).

The counterclaim for breach of warranty is barred by the waiver of remedies clause in the PSA which limits the parties’ remedies to indemnification (except for fraud and intentional misrepresentation), specific performance, and other injunctive or equitable relief (see Devash LLC v German Am. Capital Corp., 104 AD3d 71, 77 [1st Dept 2013], lv denied 21 NY3d 863 [2013]).

Concur — Tom, J.P., Renwick, DeGrasse, ManzanetDaniels and Clark, JJ.