CV HOLDINGS LLC v. ARTISAN ADVISORS LLC

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Supreme Court, Appellate Division, Third Department, New York.

CV HOLDINGS, LLC, Respondent, v. ARTISAN ADVISORS, LLC, Appellant.

Decided: May 24, 2007

Before:  PETERS, J.P., SPAIN, MUGGLIN, ROSE and LAHTINEN, JJ. Debevoise & Plimpton, New York City (Michael E. Wiles of counsel), for appellant. PDB Associates, Washington, D.C., (Phillip D. Bostwick, admitted pro hac vice), for respondent.

Appeal from a judgment of the Supreme Court (Sise, J.), entered January 25, 2006 in Montgomery County, which, upon a decision of the court, inter alia, declared that plaintiff was not obligated to pay a fee to defendant pursuant to an agreement between the parties.

Plaintiff, a holding company, commenced this declaratory judgment action after defendant, an investment banking firm, asserted that, under an agreement between the parties, it was entitled to a fee in excess of $700,000 as a result of plaintiff's sale of one of its subsidiaries.   The pertinent facts are set forth more fully in our prior decision (9 A.D.3d 654, 780 N.Y.S.2d 425 [2004] ), where we held that certain key provisions of the written agreement between the parties were ambiguous.   Upon remittal, a nonjury trial was conducted.   After the trial, Supreme Court rendered a written decision in which it discussed the germane facts, detailed its credibility determinations, and applied the facts it found credible to the law.   The court rendered a judgment declaring that plaintiff was not obligated to pay the disputed fee.   Defendant appeals.

 We affirm.   Since the agreement was ambiguous, it was proper for Supreme Court to consider extrinsic evidence in an effort to determine the parties' intent (see Amusement Bus. Underwriters v. American Intl. Group, 66 N.Y.2d 878, 880-881, 498 N.Y.S.2d 760, 489 N.E.2d 729 [1985];  Hartford Acc. & Indem. Co. v. Wesolowski, 33 N.Y.2d 169, 172, 350 N.Y.S.2d 895, 305 N.E.2d 907 [1973];  Pozament Corp. v. AES Westover, 27 A.D.3d 1000, 1001, 812 N.Y.S.2d 154 [2006] ).   There was conflicting evidence regarding the parties' intent.   While this Court has broad authority when reviewing a nonjury trial, we typically accord deference to the trial court's credibility determinations because of its advantage in observing the witnesses (see Hollow Rd. Farms v. Quo Vadis Intl., 31 A.D.3d 1023, 1024-1025, 819 N.Y.S.2d 338 [2006];  F & K Supply v. Willowbrook Dev. Co., 304 A.D.2d 918, 920, 759 N.Y.S.2d 194 [2003], lv. denied 1 N.Y.3d 502, 775 N.Y.S.2d 239, 807 N.E.2d 289 [2003] ).   Upon review of this record, we find no convincing reason to depart from Supreme Court's assessment of credibility.   The proof it found credible on the pertinent issues supports its determination that defendant was not entitled to the disputed fee.

The remaining arguments have been considered and found either unavailing or academic.

ORDERED that the judgment is affirmed, with costs.

LAHTINEN, J.

PETERS, J.P., SPAIN, MUGGLIN and ROSE, JJ., concur.

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