Digital Broadcast Corp. v Ladenburg Thalmann & Co., Inc.

2008 NY Slip Op 02492 [49 AD3d 412]

March 18, 2008

Appellate Division, First Department

As corrected through Wednesday, May 14, 2008

Digital Broadcast Corp., Respondent, v LadenburgThalmann & Co., Inc., Appellant.

—[*1]Arkin Kaplan Rice LLP, New York City (Sean R. O'Brien of counsel), for appellant.

Law Office of Sheldon H. Gopstein, New York City (Sheldon H. Gopstein of counsel), forrespondent.

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered August 21,2007, which denied defendant's motion for partial summary judgment on its counterclaim for theadvancement of attorney's fees, and granted plaintiff's cross motion for partial summary judgmentdismissing the counterclaim, unanimously affirmed, with costs.

The indemnification provision incorporated by reference to and made a part of the contractbetween plaintiff and defendant is ambiguous and cannot, as a matter of law, be interpreted asproviding for reimbursement of defendant's attorney's fees in the instant action between thesignatories to the contract (see Hooper Assoc. v AGS Computers, 74 NY2d 487 [1989]).

We have considered defendant's remaining contentions and find them unavailing.Concur—Mazzarelli, J.P., Andrias, Williams, Buckley and Acosta, JJ. [See 2007NY Slip Op 32593(U).]