NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
February 18, 2010
UBS SECURITIES LLC, ET AL., PLAINTIFFS-RESPONDENTS,
HIGHLAND CAPITAL MANAGEMENT, L.P., DEFENDANTS-APPELLANT, HIGHLAND CDO OPPORTUNITY MASTER FUND, L.P., ET AL., DEFENDANTS.
Order, Supreme Court, New York County (Bernard J. Fried, J.), entered October 8, 2009, which, insofar as appealed from, denied defendant Highland Capital Management, L.P.'s (Highland) motion to dismiss the complaint as against it, unanimously reversed, on the law, with costs, and the motion granted. The Clerk is directed to enter judgment in favor of Highland dismissing the complaint.
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.
Friedman, J.P., Sweeny, Nardelli, Freedman, JJ.
Dismissal of plaintiffs' indemnification claim against Highland is warranted, since the agreements between the parties contain no promise on the part of Highland to undertake liability with respect to the investment losses suffered by plaintiffs, or to ensure or guarantee the performance of defendant off-shore funds' obligations to bear the risk of investment losses. Absent facts alleging that Highland otherwise breached the Engagement Letter, the indemnification provision contained in said letter was not triggered (see generally Hooper Assoc. v AGS Computers, 74 NY2d 487, 491-492 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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