| Assured Guar. Mun. Corp. v DLJ Mtge. Capital, Inc. |
| 2014 NY Slip Op 03212 [117 AD3d 450] |
| May 6, 2014 |
| Appellate Division, First Department |
[*1]
| Assured Guaranty Municipal Corp., Formerly Known asFinancial Security Assurance Inc., et al., Appellants, v DLJ Mortgage Capital,Inc., Respondent, et al., Defendant. |
Quinn Emanuel Urquhart & Sullivan, LLP, New York (Philippe Z. Selendy ofcounsel), for appellants.
Orrick, Herrington & Sutcliffe LLP, New York (John Ansbro of counsel), forrespondent.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), enteredOctober 12, 2012, which, to the extent appealed from as limited by the briefs, granteddefendant DLJ Mortgage Capital, Inc.'s motion to dismiss so much of the complaint'sfirst and second causes of action as demand rescissory damages, consequential damagesand fees, based on its determination that plaintiffs' remedies are limited by the poolingand servicing agreement's "sole remedy" clause, unanimously reversed, on the law,without costs, and the first and second causes of action reinstated to the extent they seekconsequential damages.
The motion court erred in holding that, as a matter of law, the remedy available toplaintiff monoline insurers for breach of defendant's representations and warranties underthe pooling and servicing agreement is limited to cure of the breach or the substitution orrepurchase of the particular securitized loan. While their remedy, as certificate insurer,for breach of other provisions of the agreement is so limited (e.g.§ 2.02 [b] [governing mortgage documentation]), the certificate insurer isnot one of the parties affected by the "sole remedy" clause of the representations andwarranties provision (§ 2.03 [c]).
As the Court of Appeals has observed, "The best evidence of what parties to awritten agreement intend is what they say in their writing" (Slamow v Del Col, 79NY2d 1016, 1018 [1992]). Where, as here, a contract is the result of negotiationsbetween sophisticated business entities assisted by experienced counsel, failure toinclude a particular party, here the certificate insurer, among those governed by acontract provision can only be construed as the intentional exclusion of that party fromits application (see Matter ofNew York City Asbestos Litig., 41 AD3d 299, 302 [1st Dept 2007]). Nor areplaintiffs' remedies restricted by section 13.01 of the agreement, merely comprisingacknowledgment of the certificate insurer's right to exercise the rights of the certificateholders without their further consent.
[*2] Inview of this disposition, it is unnecessary to reach plaintiffs' alternative argument that thesole remedy clause does not apply to their claim for breach of defendant's obligation torepurchase certain mortgages. Concur—Tom, J.P., Saxe, Moskowitz, Gische andClark, JJ.
The decision and order of this Court entered herein on February 27, 2014 (114 AD3d598 [2014]) is hereby recalled and vacated (see 2014 NY Slip Op 71301[U][decided simultaneously herewith]). [Prior Case History: 37 Misc 3d 1212(A), 2012NY Slip Op 52001(U).]