Klock v. Grosodonia

Appellate Division of the Supreme Court of New York

Klock v. Grosodonia

251 A.D.2d 1050, 674 N.Y.S.2d 187, 1998 N.Y. App. Div. LEXIS 7132

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 10, 1998

StatusPublished

Cited by3 cases

This text of 251 A.D.2d 1050 (Klock v. Grosodonia) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Klock v. Grosodonia, 251 A.D.2d 1050, 674 N.Y.S.2d 187, 1998 N.Y. App. Div. LEXIS 7132 (N.Y. Ct. App. 1998).

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Opinion

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly granted the motion of third-party defendant Ames Stores (sued incorrectly as Ames Realty II, Inc.) for partial summary judgment on its counterclaim for contractual indemnification. The contract provides for indemnification against “any and all injury, loss or damage of whatever nature”, and thus costs and attorney’s fees are recoverable (see, Perchinsky v State of New York, 232 AD2d 34, 39, lv dismissed in part and denied in part 91 NY2d 830; DiPerna v American Broadcasting Cos., 200 AD2d 267, 269-270; Lavorato v Bethlehem Steel Corp., 91 AD2d 1184, 1185). However, we modify the order to limit the recovery to those reasonable attorney’s fees and costs incurred in defense of the primary action. A party is not entitled to contractual indemnification for those attorney’s fees and costs incurred in establishing its right to indemnification (see, Perchinsky v State of New York, supra, at 39; Lavorato v Bethlehem Steel Corp., supra, at 1185). (Appeal from Order of Supreme Court, Monroe County, Calvaruso, J. — Summary Judgment.) Present — Denman, P. J., Hayes, Pigott, Jr., Balio and Fallon, JJ.

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—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly granted the motion of third-party defendant Ames Stores (sued incorrectly as Ames Realty II, Inc.) for partial summary judgment on its counterclaim for contractual indemnification. The contract provides for indemnification against “any and all injury, loss or damage of whatever nature”, and thus costs and attorney’s fees are recoverable (see, Perchinsky v State of New York, 232 AD2d 34, 39, lv dismissed in part and denied in part 91 NY2d 830; DiPerna v American Broadcasting Cos., 200 AD2d 267, 269-270; Lavorato v Bethlehem Steel Corp., 91 AD2d 1184, 1185). However, we modify the order to limit the recovery to those reasonable attorney’s fees and costs incurred in defense of the primary action. A party is not entitled to contractual indemnification for those attorney’s fees and costs incurred in establishing its right to indemnification (see, Perchinsky v State of New York, supra, at 39; Lavorato v Bethlehem Steel Corp., supra, at 1185). (Appeal from Order of Supreme Court, Monroe County, Calvaruso, J. — Summary Judgment.) Present — Denman, P. J., Hayes, Pigott, Jr., Balio and Fallon, JJ.

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Bluebook (online)

251 A.D.2d 1050, 674 N.Y.S.2d 187, 1998 N.Y. App. Div. LEXIS 7132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klock-v-grosodonia-nyappdiv-1998.

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