Considar, Inc. v. Equipment & Parts Export, Inc. ( 2000 )

—Order, Supreme Court, New York County (Ira Gammerman, J.), entered March 18, 1999, which denied the post-trial motion of defendant SGS Control Services, Inc., inter alia, to set aside the jury verdict, granted defendant Equipment and Parts Export, Inc. (EPE) judgment on its cross claim for indemnification against SGS, granted defendant EPE’s motion, for a downward modification of the jury’s award of damages to the extent of reducing the verdict to $1,052,074, dismissed the claims of plaintiff Considar, Inc., and directed that judgment in the principal amount of $1,052,074 be entered in favor of plaintiff MRM Corporation and against defendants EPE and SGS, and ensuing judgment, same court and Justice, entered March 31, 1999, entitling plaintiff MRM to recover the total sum of $1,441,718.43 from defendants, and judgment, same court and Justice, entered April 27, 1999, which, upon the prior grant of judgment to EPE upon its cross claim for indemnification, entitled EPE to recover the total sum of $1,448,382.65 from defendant SGS, unanimously modified, on the law and the facts, to reduce the principal amount of the award of damages from $1,052,074 to $1,003,051.45, and otherwise affirmed, without costs, and the matter remanded for further proceedings.

The trial court properly found that EPE and MRM’s contract was not ambiguous and, accordingly, properly excluded testimony on the parties’ intent (see, Matter of Wallace v 600 Partners Co., 86 NY2d 543, 548). MRM and Considar’s litigation agreement did not amount to an impermissible collusive Mary Carter agreement since MRM did not agree to feign a defense so as to minimize its liability while at the same time increasing EPE and SGS’s liability (see, Leon v Peppe Realty Corp., 190 AD2d 400, 414). Considar’s claims against SGS were properly dismissed (see, Credit Alliance Corp. v Arthur Andersen & Co., 65 NY2d 536, 551). We find no error in the court’s jury charge. We find, however, that the damages awarded were improperly calculated and modify accordingly.

We have considered the parties’ remaining contentions for affirmative relief and find them unavailing. Concur — Wallach, J. P., Lerner, Rubin and Buckley, JJ.