ALMAH LLC v. AIG EMPLOYEE SERVICES INC (2018)

Order, Supreme Court, New York County (Anil C. Singh, J.), entered on or about May 23, 2017, which granted defendants' motion to dismiss the first and fourth causes of action pursuant to CPLR 3211(a)(1) and (5), unanimously reversed, on the law, without costs, and the motion denied.

It is ambiguous whether defendant AIG Employee Services, Inc. is an “assign” under the release that plaintiff previously gave to nonparties (to this action) The Goldman Sachs Group, Inc. (GS) and Goldman, Sachs & Go. (together, the GS Parties).  “A contract is ambiguous if the provisions in controversy are reasonably or fairly susceptible of different interpretations” (Goldman Sachs Group, Inc. v. Almah LLC, 85 A.D.3d 424, 426, 924 N.Y.S.2d 87 [1st Dept. 2011] [emendations and internal quotation marks omitted], lv dismissed 18 N.Y.3d 877, 939 N.Y.S.2d 290, 962 N.E.2d 781 [2012] ).  On the one hand, defendants' interpretation—that AIG is an assign—is reasonable because Black's Law Dictionary (10th ed 2014) says “assign” is the same as “assignee,” and AIG was an assignee of GS. On the other hand, plaintiff's interpretation—that AIG is not an assign—is also reasonable.  If AIG were the GS Parties' assign, the GS Parties would arguably have been in immediate breach of the settlement agreement.  Moreover, Morales v. Rotino, 27 A.D.3d 433, 812 N.Y.S.2d 582 (2d Dept. 2006) supports plaintiff's interpretation.

If a contract is ambiguous, the complaint should not be “dismissed pre-answer before the development of a full factual record as to the parties' intent” (Telerep, LLC v. U.S. Intl. Media, LLC, 74 A.D.3d 401, 403, 903 N.Y.S.2d 14 [1st Dept. 2010] ).

In light of the above, it is unnecessary to consider whether the release would bar the first and fourth causes of action if AIG were an assign.

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CLERK