Ayala v Lockheed Martin Corp.

2005 NYSlipOp 07840

October 25, 2005

Appellate Division, First Department

Dennis Ayala, Plaintiff, v Lockheed Martin Corporation et al., Defendants and Third-Party Plaintiffs-Appellants. Global Industrial Services, Inc., Third-Party Defendant-Respondent.

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Order, Supreme Court, Bronx County (Anne E. Targum, J.), entered July 12, 2004, which, inter alia, dismissed as moot defendants-appellants' motion seeking summary judgment upon their third-party claim for indemnification, unanimously affirmed, with costs.

Since the complaint in the main action had been dismissed, there was no surviving issue as to whether appellants were entitled to prevail on their third-party claim for indemnification. We note that even if attorneys' fees had been sought in the third-party complaint, they would not have been recoverable since the indemnitor's obligation to reimburse appellants for their attorneys' fees is not "unmistakably clear" from the relied-upon indemnity provision (see Hooper Assoc. v AGS Computers, 74 NY2d 487, 492 [1989]; Utilisave Corp. v Benjamin Shapiro Realty Co., 282 AD2d 403 [2001], lv denied 97 NY2d 677 [2001]). Concur—Buckley, P.J., Saxe, Marlow, Ellerin and Williams, JJ.