Certified Environments v. Nat. Cooperative Bank
Certified Environments, Inc. (Certified), and Gregory F. Paulay appeal a summary judgment in favor of National Cooperative Bank (NCB).[1] NCB hired Certified to perform construction management services in connection with the renovation of a housing project for which NCB was the construction lender. After the owner, Ocean Towers Housing Corporation (Ocean Towers), sued Certified and Paulay for damages, Certified and Paulay filed a separate action against NCB for equitable and contractual indemnity. Certified and Paulay challenge the trial courts conclusion that a release provision in a settlement agreement from prior litigation to which Ocean Towers, Certified, and NCB were parties precludes their claims alleged in this action. We conclude that the release precludes the plaintiffs claims against NCB only to the extent that those claims arise from matters that had occurred as of the date of the settlement agreement. NCB has not shown that the plaintiffs claims action arose solely from matters that had occurred as of the date of the settlement agreement and therefore is not entitled to summary judgment on that basis. Court also conclude that the parties continued performance of the construction management contract shows that they never intended to extinguish their obligations under the contract, and that NCB is not entitled to summary judgment based on the purported discharge of the contractual indemnity provision.
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