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PCT CONTR. INC. v. RIGGS DISTLER & CO., INC.

Index No. 655278/18. Appeal No. 14609. Case No. 2021-01125.

199 A.D.3d 490 (2021)

154 N.Y.S.3d 421

2021 NY Slip Op 06328

PCT Contracting Inc., Respondent-Appellant, v. Riggs Distler & Company, Inc., Appellant-Respondent.

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

Decided November 16, 2021.

Attorney(s) appearing for the Case

Dentons US LLP, New York ( John J. Hay of counsel), for appellant-respondent.

Kaufman Dolowich & Voluck, LLP, New York ( Andrew Richards of counsel), for respondent-appellant.

Concur—Manzanet-Daniels, J.P., Kapnick, Mazzarelli, Moulton, Scarpulla, JJ.

Plaintiff's first cause of action, seeking damages for breach of contract, must be dismissed in accordance with the Asset Purchase Agreement's (APA) Exclusive Remedies clause, found in section 8.09, which provides, in relevant part, that the parties' "sole and exclusive remedy with respect to any and all claims (other than claims arising from fraud, criminal activity or willful misconduct on the part of a party hereto ...) ... shall be pursuant to the indemnification provisions...

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