UBS Sec. LLC v Highland Capital Mgt., L.P.

UBS Sec. LLC v Highland Capital Mgt., L.P. 2010 NY Slip Op 01436 [70 AD3d 526] February 18, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 31, 2010

UBS Securities LLC et al., Respondents,
v
Highland Capital Management, L.P., Appellant, et al., Defendants.

—[*1] Lackey Hershman, L.L.P., Dallas, Texas (Paul B. Lackey, of the Texas Bar, admitted pro hac vice, of counsel), for appellant.

Cadwalader, Wickersham & Taft LLP, New York (Gregory A. Markel of counsel), for respondents.

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.

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 [1989]). Concur—Friedman, J.P., Sweeny, Nardelli and Freedman, JJ. [Prior Case History: 25 Misc 3d 1243(A), 2009 NY Slip Op 52565(U).]