Order, Supreme Court, New York County (Helen E. Freedman, J.), entered May 30, 2006, which, upon renewal, vacated a prior grant of partial summary judgment to plaintiffs, but denied defendant’s motion insofar as it sought summary judgment dismissing the fourth, fifth and sixth causes of action, unanimously modified, on the law, defendant’s motion granted with respect to dismissal of the fourth, fifth and sixth causes of action, and otherwise affirmed, with costs to defendant. Appeal from order, same court and Justice, entered July 21, 2005, unanimously dismissed, with costs to defendant, as superseded by the appeal from the May 30, 2006 order. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.
The facts and procedural history underlying this action are set forth in the prior decisions of this Court (10 AD 3d 293 [2004]) and the Court of Appeals (5 NY3d 582 [2005]) on an earlier appeal. Briefly, this is an action against State Street Bank and Trust Company, as indenture trustee, by the holders of approximately $750 million in certain serial notes and pass-through asset trust securities issued by the now bankrupt nonparties Loewen Group International, Inc. and the Loewen Group, Inc. (collectively, Loewen), and secured by a pool of collateral.
On or about May 15, 1996, Loewen and nonparty Bankers Trust Company entered into a collateral trust agreement (CTA), which secured certain of Loewen’s existing loans and notes and provided a mechanism whereby any additional debt obligations issued by Loewen in the future could also be secured when is
Although the indentures pursuant to which the subject notes . were issued contained provisions obligating Loewen to indemnify State Street and hold it harmless against loss or liability incurred by, or arising out of, its administration of the trust, subsequent to the issue of the indentures in question, Loewen underwent bankruptcy reorganization, and the fourth amended joint plan of reorganization contained a provision that released State Street from, in part, any claims or liabilities that, if enforced against it, would allow it to demand indemnification from Loewen. Although plaintiffs do not dispute that this release is binding upon them, they nonetheless contend that such release does not affect any of their claims against State Street, including those for breach of contract, inasmuch as, under the express terms of the indentures, State Street has no right of indemnification for any loss or liability “to the extent incurred by [State Street] through its negligence, bad faith or willful misconduct.”
However, none of the first three causes of action, alleging State Street’s breach of the ASIRS and indentures, and breach of its coextensive duties under the Trust Indenture Act (see Semi-Tech Litig., LLC v Bankers Trust Co., 353 F Supp 2d 460, 472 [SD NY 2005], affd 450 F3d 121 [2006]), are predicated upon State Street’s negligence, bad faith or wilful misconduct. Thus, as found by the motion court, such causes of action are
