Opinion
14587 Index No. 650981/17 Case No. 2018–5999
11-09-2021
LAM PLATT STREET HOTEL LLC, Plaintiff–Appellant, v. GOLDEN PEARL CONSTRUCTION LLC, et al., Defendants–Respondents Nobutaka Ashihara Architect P.C., Defendant.
Zetlin & De Chiara LLP, New York (James H. Rowland of counsel), for appellant. Rich, Intelisano & Katz, LLP, New York (Robert J. Howard of counsel), for Golden Pearl Construction LLC, respondent. Dreifuss Bonacci & Parker, PC, New York (Joanne M. Bonacci of counsel), for CNY Group LLC, Kenneth M. Colao, Steven Colao and Harry Gross, respondents.
Zetlin & De Chiara LLP, New York (James H. Rowland of counsel), for appellant.
Rich, Intelisano & Katz, LLP, New York (Robert J. Howard of counsel), for Golden Pearl Construction LLC, respondent.
Dreifuss Bonacci & Parker, PC, New York (Joanne M. Bonacci of counsel), for CNY Group LLC, Kenneth M. Colao, Steven Colao and Harry Gross, respondents.
Renwick, J.P., Singh, Kennedy, Rodriguez, Pitt, JJ.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered November 29, 2018, which, to the extent appealed from as limited by the briefs, granted defendant Golden Pearl Construction LLC's motion to dismiss the claims for consequential damages and restitution or disgorgement, unanimously affirmed, with costs.
The claims seeking consequential damages were properly dismissed. Pursuant to the unambiguous language of the waiver provision in the relevant contract, the parties waived "all consequential damages" against each another "without limitation" (see Daily News v. Rockwell Intl. Corp., 256 A.D.2d 13, 680 N.Y.S.2d 510 [1st Dept. 1998], lv denied 93 N.Y.2d 803, 689 N.Y.S.2d 16, 711 N.E.2d 201 [1999] ).
The claim for return of the additional amounts due upon execution of the parties’ settlement agreement, which plaintiff pleaded as "disgorgement" of the sum it paid to defendant and the court properly characterized as a claim for restitution, was correctly dismissed because it is barred by the undisputed existence of an enforceable contract (see Lin Shi v. Alexandratos, 137 A.D.3d 451, 452, 26 N.Y.S.3d 523 [1st Dept. 2016], lv denied 28 N.Y.3d 905, 2016 WL 6273343 [2016] ).
We have considered plaintiff's remaining contentions and find them unavailing.