| Omansky v Whitacre |
| 2008 NY Slip Op 07771 [55 AD3d 373] |
| October 16, 2008 |
| Appellate Division, First Department |
| Lawrence A. Omansky et al., Plaintiffs, v Dru Whitacre etal., Defendants. Dru Whitacre et al., Third-Party Plaintiffs-Respondents, v 64 North MooreAssociates et al., Third-Party Defendants-Appellants. |
—[*1] Maurice A. Reichman, New York, for respondents.
Order, Supreme Court, New York County (Herman Cahn, J.), entered March 23, 2007, whichgranted third-party plaintiffs' motion for summary judgment on their first, second, third, fourthand fifth causes of action, dismissed third-party defendants' affirmative defenses, and directed thelatter to provide a defense and indemnification for third-party plaintiffs in the main action,unanimously affirmed, with costs.
Based upon the well-settled rule of contract interpretation that a written agreement clear andunambiguous on its face must be enforced according to the plain meaning of its terms withoutconsideration of extrinsic and parol evidence (Greenfield v Philles Records, 98 NY2d562, 569 [2002]), the court properly found third-party defendants obligated to indemnify anddefend third-party plaintiffs in the main action. The specific arguments—that third-partyplaintiff Dru Whitacre breached a fiduciary obligation to third-party defendants by not disclosingthe existence of the main action, and that the court failed to consider the "special factsdoctrine"—were not raised on the summary judgment motion, and may not be raised forthe first time on appeal.
Were we to consider these arguments, we would reject them. Although the main action wascommenced prior to execution of the indemnification agreement, the essential facts with respectto the duty to defend and indemnify present and future litigation brought by these plaintiffs wereagreed to prior to initiation of the main action, which was a matter of public record that couldhave been discovered through the exercise of ordinary diligence (Auchincloss v Allen,211 AD2d 417 [1995]).[*2]
Third-party defendants' reliance on Blue ChipEmerald v Allied Partners (299 AD2d 278 [2002]) is misplaced. Unlike the parties inBlue Chip, here it was the managing partners and members of the limited liabilitycompany (third-party defendants) who controlled the sale of Whitacre's commercial unit, thepurchase price was an arm's length transaction, and third-party defendants knew the true value ofthe Whitacre interest they were buying.
We have considered third-party defendants' remaining arguments and find them withoutmerit. Concur—Lippman, P.J., Andrias, Buckley, Sweeny and Renwick, JJ.