| Stillwater Hydro Partners, LP v Stillwater Hydro Assoc., LLC |
| 2012 NY Slip Op 07532 [100 AD3d 1455] |
| November 9, 2012 |
| Appellate Division, Fourth Department |
| Stillwater Hydro Partners, LP, Appellant, v Stillwater HydroAssociates, LLC, Respondent. |
—[*1] Joshua A. Sabo, Troy, for defendant-respondent.
Appeal from an order of the Supreme Court, Cayuga County (Mark H. Fandrich, A.J.),entered August 15, 2011 in a declaratory judgment action. The order, insofar as appealed from,denied plaintiff's motion for summary judgment.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs, the motion is granted, and judgment is granted in favor of plaintiff as follows:
It is adjudged and declared that defendant is not entitled to the use of the escrow funds to payfor the cost of replacing the trash rack cleaner.
Memorandum: Plaintiff appeals from an order denying its motion seeking summaryjudgment in this declaratory judgment action. We agree with plaintiff that Supreme Court erredin denying the motion. The parties entered into an asset purchase agreement (APA) fordefendant's purchase of a hydroelectric plant from plaintiff. The APA included an escrowagreement as security for the performance of the APA. At issue is whether defendant is entitledto the use of the escrow funds of $75,000 to pay for the cost of replacing the trash rack cleaner,which became inoperable within six months after the closing. It is axiomatic that "a writtenagreement that is complete, clear and unambiguous on its face must be enforced according to theplain meaning of its terms" (Greenfield v Philles Records, 98 NY2d 562, 569 [2002];see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). Here, although theparties correctly agree that the APA is unambiguous, they disagree with respect to the "plainmeaning of its terms" (Greenfield, 98 NY2d at 569). Paragraph 3.2 states in relevant part:"Suitability of Assets: Disclaimer. Subject to matters set forth inSchedule 3.2, the Purchased Assets . . . are suitable for the purposesfor which they have been operated . . . and to Seller's Knowledge are not currentlyin need of replacement or material repair" (italicized emphasis added). Schedule 3.2 states inrelevant part: "Trash rack cleaner is also wearing out and may need replacement." We concludethat, by its terms, the APA excludes from the warranty of suitability the matters set forth inschedule 3.2, [*2]including the trash rack cleaner at issue.Present—Scudder, P.J., Fahey, Carni, Valentino and Martoche, JJ.