| Graham Packaging Co., L.P. v Owens-Illinois, Inc. |
| 2009 NY Slip Op 08055 [67 AD3d 465] |
| November 10, 2009 |
| Appellate Division, First Department |
| Graham Packaging Company, L.P.,Respondent, v Owens-Illinois, Inc., et al., Appellants. |
—[*1] Blank Rome LLP, Philadelphia, Pa. (Laurence S. Shtasel of counsel), forrespondent.
Judgment, Supreme Court, New York County (Helen E. Freedman, J.), entered February 20,2008, dismissing defendants' counterclaim pursuant to an order, same court and Justice, enteredOctober 25, 2007, which granted plaintiff's motion to dismiss the counterclaim, unanimouslyaffirmed, with costs. Appeal from aforesaid order unanimously dismissed, without costs, assubsumed in the appeal from the judgment.
Defendants' claim of fraudulent concealment was not viable, undermining their counterclaimfor damages and rescission of the settlement agreement. Even if arguendo plaintiff was under aduty to disclose its own valuation of its anticipated claims against defendants, and even ifdefendants could not have learned of such information by the exercise of reasonable diligence,defendants, sophisticated entities represented by counsel, should have at least inquired aboutsuch valuation or inserted a prophylactic provision in the settlement agreement to limit theirexposure (see Permasteelisa, S.p.A. vLincolnshire Mgt., Inc., 16 AD3d 352 [2005]). In view of the foregoing, we find itunnecessary to address the parties' remaining contentions. Concur—Tom, J.P., Saxe,Renwick, DeGrasse and Richter, JJ.