GRAHAM PACKAGING COMPANY v. OWENS ILLINOIS INC (2009)

Judgment, Supreme Court, New York County (Helen E. Freedman, J.), entered February 20, 2008, dismissing defendants' counterclaim pursuant to an order, same court and Justice, entered October 25, 2007, which granted plaintiff's motion to dismiss the counterclaim, unanimously affirmed, with costs. Appeal from aforesaid order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Defendants' claim of fraudulent concealment was not viable, undermining their counterclaim for damages and rescission of the settlement agreement. Even if arguendo plaintiff was under a duty to disclose its own valuation of its anticipated claims against defendants, and even if defendants could not have learned of such information by the exercise of reasonable diligence, defendants, sophisticated entities represented by counsel, should have at least inquired about such valuation or inserted a prophylactic provision in the settlement agreement to limit their exposure (see Permasteelisa, S.p.A. v. Lincolnshire Mgt., Inc., 16 A.D.3d 352, 793 N.Y.S.2d 16 [2005] ). In view of the foregoing, we find it unnecessary to address the parties' remaining contentions.