Awards.com v. Kinko's, Inc.

84 A.D.3d 639, 923 N.Y.S.2d 510

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 24, 2011
• Status: Published

Opinion

Order and judgment (one paper), Supreme Court, New York County (Charles E. Ramos, J.), entered February 10, 2009, which, to the extent appealed from, awarded defendant Kinko’s, Inc. $73,939 in attorney’s fees and $5,000 in costs, and bringing up for review an order, same court and Justice, entered June 23, 2008, which, to the extent appealed from as limited by the briefs, granted Kinko’s motion for legal fees to the extent of referring to a special referee the determination of the amount of legal fees Kinko’s incurred by interposing its breach of contract counterclaim, and an order, same court and Justice, entered December 22, 2008, which, to the extent appealed from, directed entry of the aforesaid judgment, unanimously modified, on the law, to the extent of remanding the matter for recalculation of all the fees which Kinko’s incurred in prosecuting the counterclaim, and otherwise affirmed, without costs. Appeal from the aforesaid orders unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Supreme Court properly determined that, under the indemnification provision of an agreement between Kinko’s and plaintiff Inspire Someone, LLC, Kinko’s is entitled to recover the legal fees incurred only in prosecuting its breach of contract counterclaim. Indeed, when applying the proper standard of construction of such indemnification clauses, it is not “unmistakably clear” that the agreement’s indemnification provision applies to fees incurred in defending against plaintiffs’ claims (Hooper Assoc. v AGS Computers, 74 NY2d 487, 492 [1989]). However, Supreme Court awarded fees only with respect to Kinko’s motion for summary judgment on its breach of contract counterclaim. As Kinko’s notes, Kinko’s incurred other fees in prosecuting its counterclaim, including fees incurred in taking discovery and litigating appeals. Accordingly, we remand for recalculation of the legal fees as indicated. Concur — Tom, J.E, Saxe, Moskowitz, Acosta and Abdus-Salaam, JJ.