McClean v. Poulikidis

221 A.D.2d 325, 633 N.Y.S.2d 1005, 1995 N.Y. App. Div. LEXIS 11241

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 6, 1995
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendants Harry Poulikidis and Harris Home Design appeal from (1) an order of the Supreme Court, Nassau County (Becker, J.), dated June 21,1994, which granted that branch of the defendant TDP Leasing Corp.’s motion which was for summary judgment on its cross claim for recovery of counsel fees and costs incurred in the defense of the action, and (2) a judgment of the same court, dated January 4, 1995, which is in favor of the defendant TDP Leasing Corp. and against them in the principal sum of $37,262.59.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is reversed, on the law, the order is vacated, and that branch of the motion which was for summary judgment on the issue of counsel fees and costs is denied; and it is further,

Ordered that the appellants are awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

The plain meaning of the lease at issue provided that the defendants Harry Poulikidis and Harris Home Design would only indemnify the defendant TDP Leasing Corp. (hereinafter TDP) for counsel fees if TDP were held to be responsible to pay another person. Since there has been no such finding, the award of counsel fees to TDP was premature, and questions of fact remain on the issue of indemnification. Balletta, J. P., Rosenblatt, Pizzuto, Joy and Altman, JJ., concur.