Summary
holding that a contract providing for attorney fees entitled party to judgment as a matter of law on the issue of whether its counterparty owed attorney fees
Summary of this case from Aurora Commercial Corp. v. Approved Funding Corp.Opinion
2011-12-27
Daniel SIMONE, Jr., et al., plaintiffs, v. LIEBHERR CRANES, INC., et al., defendants,Beys Contracting, Inc., defendant second third-party plaintiff-respondent,Resun Leasing, Inc., defendant second third-party defendant-appellant(and other third-party actions).
White, Quinlan & Staley, LLP, Garden City, N.Y. (Joanne Emily Bell of counsel), for defendant second third-party defendant-appellant. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Mathew P. Ross and Debra A. Adler of counsel), for defendant second third-party plaintiff-respondent.
White, Quinlan & Staley, LLP, Garden City, N.Y. (Joanne Emily Bell of counsel), for defendant second third-party defendant-appellant. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Mathew P. Ross and Debra A. Adler of counsel), for defendant second third-party plaintiff-respondent.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, ARIEL E. BELEN, and SHERI S. ROMAN, JJ.
In an action to recover damages for personal injuries, etc., the defendant second third-party defendant, Resun Leasing, Inc., appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated October 1, 2010, as granted that branch of the cross motion of the defendant second third-party plaintiff, Beys Contracting, Inc., which was for summary judgment on the cause of action asserted in the second third-party action against it for contractual indemnification with respect to attorneys' fees and costs.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The contract between the defendant Resun Leasing, Inc. (hereinafter the appellant), as subcontractor, and the defendant Beys Contracting, Inc. (hereinafter the respondent), as contractor provided that “[t]o the extent permitted by law, Subcontractor shall indemnify, hold harmless and defend ... Contractor ... and [its] agents and employees ... from and against all claims, damages, losses and expenses including but not limited to attorneys' fees arising out of or resulting from the performance of the agreement, provided any such claim, damage, loss or expenses (a) is attributable to bodily injury ... and (b) is caused in whole or in part by any act or omission of the Subcontractor or anyone directly or indirectly employed by it or anyone for whose acts it may be liable pursuant to the performance of the agreement.”
Contrary to the appellant's contention, the respondent established its prima facie entitlement to judgment as a matter of law by showing that this action arose out of the appellant's performance of the contract and the acts or omissions of persons and entities directly and indirectly employed by the appellant ( cf. Langner v. Primary Home Care Servs., Inc., 83 A.D.3d 1007, 1010, 922 N.Y.S.2d 431; D'Angelo v. Builders Group, 45 A.D.3d 522, 845 N.Y.S.2d 814). The plain and unambiguous terms of the contract did not condition the appellant's obligation for attorneys' fees and costs upon a finding of fault ( see Diudone v. City of New York, 87 A.D.3d 608, 928 N.Y.S.2d 464; Sand v. City of New York, 83 A.D.3d 923, 926, 921 N.Y.S.2d 312). Since the contract did not require as a condition for contractual indemnification that the acts or omissions be negligent or wrongful, whether those acts or omissions constituted negligent conduct was not relevant to the appellant's liability for contractual indemnification with respect to attorneys' fees and costs ( cf. Martinez v. City of New York, 73 A.D.3d 993, 999, 901 N.Y.S.2d 339; Quiroz v. Beitia, 68 A.D.3d 957, 961, 893 N.Y.S.2d 70; Bryde v. CVS Pharmacy, 61 A.D.3d 907, 908, 878 N.Y.S.2d 152). In opposition, the appellant failed to raise a triable issue of fact.
The appellant's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted that branch of the respondent's cross motion which was for summary judgment on its cause of action asserted in the second third-party action against the appellant for contractual indemnification with respect to attorneys' fees and costs.