USCOA,2 No. 52
   Thomas Baker, on behalf of himself and all others similarly situated,
   et al., Plaintiffs,
   v.
   Health Management Systems, Inc., et al.,
   Respondents,
   v.
   Phillip Siegel,
   Appellant.
     _________________________________________________________________

   2002 NY Int. 43

   April 25, 2002

   This opinion is uncorrected and subject to revision before publication
   in the New York Reports.

   Dennis J. Block, for appellant.
   Howard I. Rhine, for respondents.
     _________________________________________________________________

   LEVINE, J.:

   Appellant Phillip Siegel was the Chief Financial Officer of respondent
   Health Management Systems, Inc. (HMS). In that capacity, he was joined
   as a party defendant in several securities fraud class actions brought
   in the United States District Court, Southern District of New York,
   against HMS and various officers and directors. Although all claims
   against Siegel were ultimately dismissed by stipulation, HMS refused
   Siegel's request for reimbursement of his attorneys' fees and
   expenses. Siegel subsequently moved in the District Court for
   indemnification from HMS, including reimbursement for legal expenses
   that he incurred in making his motion for indemnification. He based
   his claim in part on the director/officer indemnification provisions
   of the New York Business Corporation Law. The court denied Siegel's
   application only insofar as he sought such "fees on fees." On appeal,
   the United States Court of Appeals for the Second Circuit certified
   the following question to us:

     "Where a corporate officer is 'successful' in the defense of an
     underlying action, within the meaning of New York Business
     Corporation Law § 723(a), where the corporation unsuccessfully
     contests the duty to indemnify and contests with partial success
     the amount of indemnification, and where there is no bad faith on
     the part of the corporation * * * does the phrase 'attorneys' fees