Marinelli v. Oceanside Knolls, Inc.

253 A.D.2d 741, 677 N.Y.S.2d 483, 1998 N.Y. App. Div. LEXIS 9464

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 14, 1998
• Status: Published

Opinion

In an action to recover damages for personal injuries, the third-party defendant appeals from an interlocutory judgment of the Supreme Court, Nassau County (DeMaro, J.), entered August 26, 1997, which is in favor of the defendant third-party plaintiff on the third-party complaint for common-law indemnification and awarded attorney’s fees and expenses in the sum of $10,270.

Ordered that the interlocutory judgment is modified, on the law, by deleting the provision awarding attorney’s fees and expenses in the sum of $10,270, and remitting the matter to the Supreme Court, Nassau County, for a hearing on the amount of reasonable attorney’s fees and expenses to be awarded; as so modified, the interlocutory judgment is affirmed, with costs to the respondent.

We agree with the Supreme Court that the defendant third-party plaintiff was entitled to summary judgment on its third-party cause of action for common-law indemnification (see, Eccleston v Berakha, 233 AD2d 417; Dawson v Pavarini Constr. Co., 228 AD2d 466; Danaher v Notarfrancesco, 213 AD2d 444; McNair v Morris Ave. Assocs., 203 AD2d 433).

However, the defendant third-party plaintiff is entitled to recover its attorney’s fees and expenses incurred in defending the plaintiffs claim as part of its common-law indemnification claim (see, Eccleston v Berakha, supra). Since the reasonableness of the sum awarded cannot be determined on this record, the matter is remitted for a hearing on the amount of reasonable attorney’s fees and expenses to be awarded. O’Brien, J. P., Ritter, Thompson, Friedmann and Goldstein, JJ., concur.