NRT N.Y., LLC v Kontos

NRT N.Y., LLC v Kontos 2012 NY Slip Op 08817 Decided on December 20, 2012 Appellate Division, First Department 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.

Decided on December 20, 2012
Tom, J.P., Sweeny, DeGrasse, Manzanet-Daniels, Clark, JJ.
8880N 113391/11

[*1]NRT New York, LLC, doing business as The Corcoran Group, Plaintiff-Respondent,

v

Hercules Kontos, Defendant-Respondent. Hercules Kontos, Third-Party Plaintiff-Respondent, Triton Enterprises, LLC, et al., Third-Party Defendants-Appellants.




Borchert, Genovesi & LaSpina, P.C., Whitestone (Helmut
Borchert of counsel), for appellants.
Katten Muchin Rosenman LLP, New York (Jay W. Freiberg of
counsel), for respondent.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered on or about September 6, 2012, which, to the extent appealed from, denied so much of third-party defendants' motion to dismiss as sought dismissal of third-party plaintiff Kontos' claim for legal fees, unanimously reversed, on the law, without costs, and the motion granted.

The indemnification clause at issue here clearly and unambiguously makes third-party defendant Triton's indemnification of Kontos conditioned upon Triton's use of a broker other than Corcoran. Thus, Triton promised that if it violated the contract by dealing with another broker and that broker sued Kontos, Triton would indemnify Kontos for the cost of defending such suit. With regard to indemnification, the sales contract promised that, and nothing more, and this Court rejects Kontos' attempt to read into the clause a duty by Triton to otherwise indemnify Kontos (see Hooper Assoc. v AGS Computers, 74 NY2d 487, 491-492 [1989]). Moreover, neither Kontos' conclusory allegations in his complaint nor parol evidence may be [*2]used to alter the plain meaning of the contract (W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 163 [1990]; Harvey v Greenberg, 82 AD3d 683 [1st Dept 2011]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 20, 2012

CLERK