

MEG Holdings, LLC v Sapphire Power Fin. LLC (2015 NY Slip Op 02429)





MEG Holdings, LLC v Sapphire Power Fin. LLC


2015 NY Slip Op 02429


Decided on March 24, 2015


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on March 24, 2015

Tom, J.P., Renwick, DeGrasse, Manzanet-Daniels, Clark, JJ.


653906/12 14614 14613

[*1] MEG Holdings, LLC, Plaintiff-Respondent,
vSapphire Power Finance LLC, Defendant-Appellant, U.S. Bank National Association, Nominal Defendant.


Morgan, Lewis & Bockius LLP, New York (John Dellaportas of counsel), for appellant.
Arent Fox LLP, New York (Howard Graff and Courtney E. Topic of counsel), for respondent.

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 Agreement (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 [*2]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]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 24, 2015
CLERK


