Kay-Bee Toys Corp. v. Winston Sports Corp.

• Decision Date: 20 April 1995
• Docket Number: KAY-BEE
• Citation: 214 A.D.2d 457,625 N.Y.S.2d 208
• Parties: TOYS CORPORATION, Plaintiff-Respondent v. WINSTON SPORTS CORPORATION, etc., Defendant-Appellant, Toy Alliance Insurance Limited, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 208

625 N.Y.S.2d 208

214 A.D.2d 457

KAY-BEE TOYS CORPORATION, Plaintiff-Respondent v. WINSTON SPORTS CORPORATION, etc Defendant-Appellant Toy Alliance Insurance Limited, Defendant.

Supreme Court, Appellate Division,

First Department.

April 20, 1995.

R.M. Del Re, for plaintiff-respondent.

A. Ross, for defendant-appellant.

Before SULLIVAN, J.P., and ELLERIN, WALLACH, ASCH and WILLIAMS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Walter Schackman, J.), entered on or about March 7, 1994, which, inter alia, granted the motion by plaintiff for summary judgment to the extent of declaring that defendant Winston Sports Corporation ("Winston") had agreed to acquire liability insurance naming the plaintiff as an additional insured and to indemnify and hold the plaintiff harmless, inter alia, from any verdict, judgment or settlement against the plaintiff in connection with an action captioned Eric S. Monohan and Steven Monohan v. Winston Sports Corp. and Kay-Bee Toy Corp. (Sup.Ct.N.Y. Co., Index No. 15350/91) ("the Monohan action"), unanimously affirmed, with costs.

The IAS court properly determined that defendant Winston was contractually obligated by the provisions on the reverse side of the parties' purchase orders for the sale of goods to indemnify the plaintiff for any liability arising as a result of the Monohan action and to add plaintiff's name to defendant's liability policy and to provide therein for coverage of contractual indemnity.

The interpretation of the clear and unambiguous terms of the parties' purchase orders, including the valid and enforceable indemnity clause which was negotiated at arms length, was for the court (Long Is. R.R. Co. v. Northville Indus. Co., 41 N.Y.2d 455, 461, 393 N.Y.S.2d 925, 362 N.E.2d 558), since it is recognized in New York that purchase orders may create a binding contract (Polygram, S.A. v. 32-03 Enters., 697 F.Supp. 132, 135; Thomaier v. Hoffman Chevrolet, 64 A.D.2d 492, 495, 410 N.Y.S.2d 645).

The purchase orders, which contained the names and addresses of the parties, the date, the price, and a description of the goods sold, and which, on the reverse side thereof, clearly set forth the terms and conditions of the purchase order, represented the final written expression of the parties with respect to the terms included therein, which may not be contradicted by parol evidence (Battista v. Radesi, 112 A.D.2d 42, 491 N.Y.S.2d 81; General Motors Acceptance Corp. v. Fairway Dodge Sales, 80 A.D.2d 740, 741, 437 N.Y.S.2d 171).

Defendant's contentions, that the purchase orders were faxed to defendant without the pertinent terms and conditions on the reverse side and that the...