David W. Chapel et al., Plaintiffs, v. Samuel J. Mitchell, &c., et al.,
Respondents, v. Robert E. Lee, Doing Business as Protdec, Third-Party
Appellant
84 N.Y.2d 345, 642 N.E.2d 1082, 618 N.Y.S.2d 626 (1994).
October 27, 1994
3 No. 150 (1994 NY Int. 168) Decided October 27, 1994
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Sanford P. Tanenhaus, for third-party appellant.
No appearance, for respondent.
CIPARICK, J.:
This case requires us to decide whether an indemnitee may recover from
an indemnitor the legal expenses incurred in prosecuting a common law
indemnification claim. We conclude that such legal expenses are not
recoverable.
While employed by third-party defendant Robert E. Lee, plaintiff David
W. Chapel sustained injuries when he fell from the roof of a building
owned by defendants/third-party plaintiffs Samuel J. Mitchell and
S.J.M. Enterprises (defendant). Plaintiff commenced an action against
defendant under Labor Law § 240. Defendant in turn commenced a
third-party action against third- party defendant seeking common law
indemnification. Plaintiff moved for summary judgment against
defendant on the ground that defendant was strictly liable for
plaintiff's injuries under Labor Law § 240. Defendant cross-moved for
summary judgment to declare third-party defendant liable to it for
plaintiff's injuries.
Supreme Court granted plaintiff's motion as against defendant. By
separate order, it also granted defendant's cross motion for summary
judgment as against third-party defendant, finding that defendant was
not actively negligent and, thus, was entitled to full
indemnification. Defendant then moved against third-party defendant
for an order to recover attorney's fees, costs, and disbursements
incurred in defending the first-party action and in prosecuting the
third-party indemnification claim. Supreme Court granted defendant's
motion and ordered a hearing on attorneys' fees. The court awarded
defendant $9,268.30, which sum also included the legal fees and costs
expended for the third-party action. The Appellate Division affirmed,
SNIPPETS:
David W. Chapel et al., Plaintiffs, v. Samuel J. Mitchell, &c., et al., Respondents, v.
This opinion is uncorrected and subject to revision before publication in the New York
Sanford P. Tanenhaus, for third-party appellant.
This case requires us to decide whether an indemnitee may recover from an indemnitor the
While employed by third-party defendant Robert E. Lee, plaintiff David W. Chapel sustained
Plaintiff moved for summary judgment against defendant on the ground that defendant was
By separate order, it also granted defendant's cross motion for summary judgment as against
Defendant then moved against third-party defendant for an order to recover attorney's fees,
Supreme Court granted defendant's motion and ordered a hearing on attorneys' fees.
The Appellate Division affirmed, concluding that the legal expenses of the third-party action
It is well settled that an owner who is only vicariously liable under the Labor Law may
The Appellate Division held that "the defense of plaintiffs' action and the prosecution of
(33 AD2d 739, aff'd 26 NY2d 1045), the sole authority relied upon by the court below for this
True, the instant indemnification claim can be fairly characterized as incidental to the main
Co., we held that the insured was entitled to recover from its insurer the legal expenses
Moreover, we could not adopt such a rule without simultaneously disparaging the fundamental
en the parties, statute or court rule")).
We thus conclude that in the absence of any pertinent contractual or statutory provision with
Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Levine concur.
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