Eliseo v. Stan Margolin Associates, Inc.

175 A.D.2d 682

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1991
• Status: Published

Opinion

— Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: Supreme Court properly denied plaintiff’s motion for summary judgment. The allegations in defendant’s third-party complaint cannot be used as admissions against defendant, particularly where they are inconsistent with the denials in the answer (see, Kirchner v Muller, 280 NY 23; Collins v Caldor of Kingston, 73 AD2d 708; Scolite Intl. Corp. v Vincent J. Smith, Inc., 68 AD2d 417). Plaintiff is not entitled to summary judgment on the cause of action alleging a breach of the agreement requiring defendant to indemnify and hold plaintiff harmless against any liens placed on plaintiff’s property as a result of the construction. An action for the breach of an indemnity agreement does not arise until plaintiff has suffered damage by reason of the breach (Mars Assocs. v New York City Educ. Constr. Fund, 126 AD2d 178).

The court properly directed plaintiff to respond to defendant’s demand for a bill of particulars as modified. Contrary to plaintiff’s contention, the demand did not call for evidentiary material.

It is impossible for us to review plaintiff’s argument that the court erred by denying her motion for a protective order with respect to defendant’s notice for discovery and inspection because the notice is not included in the record.

For the reasons stated by Supreme Court, defendant’s motion for summary judgment was properly denied, except that summary judgment should have been granted dismissing the tenth cause of action for attorney’s fees. Here, attorney’s fees may not be awarded because no award is authorized either by agreement, statute, or court rule (see, Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5). Thus, we modify the order appealed from by granting summary judgment dismissing the tenth cause of action. (Appeals from Order of Supreme Court, Nassau County, Robbins, J. — Summary Judgment.) Present — Doerr, J. P., Boomer, Pine, Lawton and Lowery, JJ.