| Canela v TLH 140 Perry St., LLC |
| 2008 NY Slip Op 00440 [47 AD3d 743] |
| January 22, 2008 |
| Appellate Division, Second Department |
| Jose Canela, Plaintiff, v TLH 140 Perry Street, LLC, et al.,Respondents, and Andrews Building Corp. et al., Appellants. |
—[*1] Wade Clark Mulcahy, New York, N.Y. (David F. Tavella of counsel), forrespondents.
In an action to recover damages for personal injuries, the defendants Andrews Building Corp.and 140 Perry Street Condominium appeal, as limited by their brief, from so much of an order ofthe Supreme Court, Kings County (Bayne, J.), dated October 6, 2006, as denied that branch oftheir motion which was for entry of judgment against the defendants TLH 140 Perry Street, LLC,and David Smilow, as contractual indemnification, for the amount of the settlement proceedsthey paid to the plaintiff and for the amount of their attorney's fee incurred in defending theaction.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the appellants' motion which was for entry of judgment against the defendants TLH140 Perry Street, LLC, and David Smilow, as contractual indemnification, for the amount of thesettlement proceeds they paid to the plaintiff and for the amount of their attorney's fee incurred indefending the action is granted.
The plaintiff allegedly was injured while performing alteration work in a condominium unitowned by the defendants TLH 140 Perry Street, LLC, and David Smilow (hereinafter the UnitOwners). After a trial on the issue of liability, the action was settled and the damages were paidby the defendants Andrews Building Corp. and 140 Perry Street Condominium (hereinafter theappellants). During the settlement the appellants expressly reserved the right to contractualindemnification. They thereafter moved, inter alia, for entry of judgment against Unit Owners, as[*2]contractual indemnification for the amount of the settlementproceeds they paid to the plaintiff and for the amount of their attorney's fee incurred in defendingthe action. The Supreme Court denied such relief. We reverse.
The right to contractual indemnification depends upon the specific language of the contract(see Kader v City of N.Y., Hous.Preserv. & Dev., 16 AD3d 461, 463 [2005]). The intent to indemnify must be clearlyimplied from the language and purposes of the entire agreement and the surroundingcircumstances (see Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777[1987]; Margolin v New York Life Ins. Co., 32 NY2d 149, 153 [1973]). Here, theagreement between the appellants and the Unit Owners concerning the underlying alterationwork does not meet this standard (cf., Drzewinski v Atlantic Scaffold & Ladder Co., 70NY2d 774 [1987]; Margolin v New York Life Ins. Co., 32 NY2d 149 [1973]). However,the relevant condominium bylaws provide that, even in the absence of an express writtenagreement, all unit owners making alterations to their units are deemed to agree "to indemnifyand hold the [appellants] . . . harmless from and against any such liability, cost andexpense" arising from such alteration work. The terms "such liability, cost and expense"specifically refer to, inter alia, "any claim for personal injury or property damage" arising fromthe alteration work. These bylaws, which are binding on the Unit Owners (see RealProperty Law § 339-j; Board of Mgrs., Washington's Headquarters TownhousesCondominium v Gottlieb, 186 AD2d 525, 526-527 [1992]), are sufficient to impose a dutyupon the Unit Owners to indemnify the appellants for the amount of the settlement proceeds theypaid to the plaintiff and for the amount of their attorney's fee incurred in defending the action (see Watral & Sons, Inc. v OC Riverhead58, LLC, 34 AD3d 560, 563-564 [2006]; Torres v Morse Diesel Intl., Inc., 14 AD3d 401, 403 [2005];Klock v Grosodonia, 251 AD2d 1050 [1998]; DiPerna v American BroadcastingCos., 200 AD2d 267, 269-270 [1994]).
The parties' remaining contentions are without merit. Skelos, J.P., Ritter, Miller and Covello,JJ., concur.