Bankers Trust v. Hentz Co.

Full title: BANKERS TRUST CO., Plaintiff, v. H. HENTZ CO. et al., Defendants

Court: Supreme Court, New York County

Date published: Jul 17, 1975

82 Misc. 2d 873 (N.Y. Sup. Ct. 1975)

372 N.Y.S.2d 797

Opinion

July 17, 1975

Charles Leeds for plaintiff.

Willkie Farr Gallagher for Shearson Hayden Stone, Inc., defendant.

Baer Marks for H. Hentz Co. and others, defendants.

GEORGE STARKE, J.

Motion to dismiss the complaint pursuant to CPLR 3211 (subd [a], par 7) and CPLR 3211 (subd [a], par 1) as against Shearson Hayden is disposed of as follows:

The July 25, 1973 purchase agreement between Shearson Hayden and H. Hentz Company provides for the assumption of liabilities specifically set forth and described therein (¶ 2.2). Admittedly none of the claims asserted herein which arose five years prior to the execution of said agreement by Bankers Trust fall into the categories of liability assumed therein.

Further, the indemnity provision whereby Hentz indemnifies Hayden for liabilities not assumed (¶ 2.3) on its face does not demonstrate that Shearson Hayden assumed all of the liabilities of Hentz, but rather is indicative of the opposite. It is clear, that such a limited agreement for the purchase of assets and assumptions of liability may be so limited. (Lopata v Bemis Co., 383 F. Supp. 342; Shane v Hobam, Inc., 332 F. Supp. 526; Copease Mfg. Co. v Cormac Photocopy Corp., 242 F. Supp. 993.) Accordingly, the motion is granted.