Ubs Sec. Llc v. Highland Capital Mgmt.

• Decision Date: 18 February 2010
• Parties: UBS SECURITIES LLC, et al., Plaintiffs–Respondents,v.HIGHLAND CAPITAL MANAGEMENT, L.P., Defendants–Appellant,Highland CDO Opportunity Master Fund, L.P., et al., Defendants.
• Court: New York Supreme Court — Appellate Division

70 A.D.3d 526

893 N.Y.S.2d 869

2010 N.Y. Slip Op. 01436

UBS SECURITIES LLC, et al., Plaintiffs–Respondents,

v.HIGHLAND CAPITAL MANAGEMENT, L.P., Defendants–Appellant,Highland CDO Opportunity Master Fund, L.P., et al., Defendants.

Supreme Court, Appellate Division, First Department, New York.

Feb. 18, 2010.

OPINION TEXT STARTS HERELackey Hershman, L.L.P., Dallas, TX (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 N.Y.2d 487, 491–492, 549 N.Y.S.2d 365, 548 N.E.2d 903 [1989] ).