| Western Beef Mariners Harbor, LLC v Vornado Forest Plaza,LLC |
| 2009 NY Slip Op 02987 [61 AD3d 745] |
| April 14, 2009 |
| Appellate Division, Second Department |
| Western Beef Mariners Harbor, LLC,Appellant-Respondent, v Vornado Forest Plaza, LLC, Defendant, and Great Atlantic &Pacific Tea Company, Inc., Respondent-Appellant. |
—[*1] Marcus Rosenberg & Diamond LLP, New York, N.Y. (David Rosenberg and Pamela D.Evans of counsel), for respondent-appellant.
In an action for a judgment declaring, inter alia, that the plaintiff's proposed sublease of aportion of certain commercial premises does not constitute a violation of a lease and sublease,the plaintiff appeals (1), as limited by its brief, from so much of an order of the Supreme Court,Richmond County (Minardo, J.), dated December 21, 2007, as granted those branches of thecross motion of the defendant Great Atlantic & Pacific Tea Company, Inc., which were forsummary judgment declaring that it is obligated to indemnify that defendant in this action and arelated action entitled Vornado Forest Plaza, LLC v Great Atlantic & Pacific Tea Company,Inc., commenced in the Supreme Court, New York County, under index No. 119025/06, andis obligated to pay the defendant Great Atlantic & Pacific Tea Company, Inc., attorney's fees andexpenses incurred in this action and the related action, and (2) from an order of the same courtentered April 25, 2008, and the defendant Great Atlantic & Pacific Tea Company, Inc.,cross-appeals from so much of the order entered April 25, 2008, as granted its cross motion foran award of attorney's fees and expenses in the sum of $66,898.37 only to the extent of awardingit the sum of $40,000 "inclusive of all interest, costs [and] disbursements."
Ordered that the appeal by the plaintiff from the order entered April 25, 2008 is [*2]dismissed as abandoned (see 22 NYCRR 670.8 [e]); and itis further,
Ordered that the order dated December 31, 2007 is affirmed insofar as appealed from; and itis further,
Ordered that the order entered April 25, 2008 is reversed insofar as cross-appealed from, onthe law and in the exercise of discretion, and the cross motion of the defendant Great Atlantic &Pacific Tea Company, Inc., for an award of attorney's fees and expenses in the sum of$66,898.37 is granted in its entirety; and it is further,
Ordered that one bill of costs is awarded to the defendant Great Atlantic & Pacific TeaCompany, Inc.
The defendant Great Atlantic & Pacific Tea Company, Inc. (hereinafter A & P) establishedits prima facie entitlement to judgment as a matter of law. A & P demonstrated that the plainlanguage of an indemnity provision in a sublease assigned to the plaintiff required the plaintiff toindemnify A & P in this action and in a related action, and also required the plaintiff to pay A &P attorney's fees and expenses incurred in this action and the related action (cf. HooperAssoc. v AGS Computers, 74 NY2d 487, 491-492 [1989]). In opposition, the plaintiff failedto raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).Accordingly, the Supreme Court properly granted those branches of A & P's cross motion whichwere for summary judgment declaring that the plaintiff is obligated to indemnify A & P in thisaction and the related action, and is obligated to pay A & P attorney's fees and expenses incurredin this action and the related action.
Under the circumstances, we conclude that A & P was also entitled to an award ofreasonable attorney's fees and expenses in the sum of $66,898.37 (cf. Utica Mut. Ins. Co. v Magwood Enters.,Inc., 15 AD3d 471, 472-473 [2005]). Fisher, J.P., Covello, Angiolillo and Dickerson,JJ., concur.