| Slepian v Motelson |
| 2009 NY Slip Op 07617 [66 AD3d 871] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Mitchell Slepian, Plaintiff, v Enid Motelson et al.,Respondents, and Ford Motor Credit Company, Defendant and Third-Party Plaintiff-Appellant.Dome Property Management, Inc., Third-PartyDefendant-Respondent. |
—[*1] Bruno Gerbino & Soriano, LLP (Pollack, Pollack, Isaac & De Cicco, New York, N.Y.[Brian J. Isaac and Michael H. Zhu], of counsel), for defendants-respondents and third-partydefendant-respondent.
In an action to recover damages for personal injuries, the defendant third-party plaintiff,Ford Motor Credit Company, appeals (1) from an order of the Supreme Court, Richmond County(Maltese, J.), dated February 25, 2008, which denied its motion for summary judgment on itscross claim for indemnification and in its favor on the third-party complaint, without prejudice torenew after the conclusion of a trial in related actions, and (2), as limited by its brief, from somuch of an order of the same court dated August 29, 2008, as denied its renewed motion forsummary judgment on its cross claim for indemnification and in its favor on the third-partycomplaint.
Ordered that the appeal from the order dated February 25, 2008 is dismissed, as that orderwas superseded by the order dated August 29, 2008; and it is further,
Ordered that the order dated August 29, 2008 is affirmed insofar as appealed from, and itsfurther,
Ordered that one bill of costs is awarded to the respondents.
This case arises out of an automobile accident which occurred on July 1, 2000 when thedecedent Steven Motelson was driving a 1998 Ford Explorer which he leased, along with thethird-party defendant Dome Property Management, Inc. (hereafter Dome), from the defendantthird-party plaintiff Ford Motor Credit Company (hereafter FMCC). Four passengers were ridingin the vehicle including the plaintiff, Mitchell Slepian. The plaintiff commenced this actionagainst the decedent's estate and FMCC, among others, to recover damages for personal injurieshe allegedly sustained as a result of the subject accident. FMCC ultimately settled with theplaintiff in the sum of $1,750,000. Pursuant to an indemnification provision in the lease betweenitself, the decedent, and Dome, FMCC moved for summary judgment on its cross claim forindemnification against the defendant Michael Motelson, as administrator of the estate of StevenMotelson, and on the third-party complaint against Dome, seeking, in effect, to [*2]recoup its settlement payout to the plaintiff and legal costs incurredin defending itself in this action. The Supreme Court denied the motion, and FMCC's renewedmotion, and we affirm.
Where, as here, " 'an indemnitor has notice of the claim against it, the general rule is that theindemnitor will be bound by any reasonable good faith settlement the indemnitee mightthereafter make' " (Goldmark Indus. v Tessoriere, 256 AD2d 306, 307 [1998], quotingColeman v J.R.'s Tavern, 212 AD2d 568, 568 [1995]).
Here, FMCC met its initial burden of demonstrating entitlement to judgment as a matter oflaw on its contractual indemnification claim by tendering sufficient evidence establishing thatMichael Motelson and Dome received the requisite notice, that it made a reasonable settlementin good faith, and that it could have been held liable if it had proceeded to trial (seeZuckerman v City of New York, 49 NY2d 557 [1980]; Fidelity Natl. Tit. Ins. Co. ofN.Y. v First N.Y. Tit. & Abstract, 269 AD2d 560 [2000]; Shihab v Bank of N.Y.,211 AD2d 430 [1995]).
In response to FMCC's prima facie showing, however, Michael Motelson and Domedemonstrated that triable issues of fact exist as to whether FMCC entered into the settlement ingood faith, and as to the amount of legal costs FMCC seeks to recover in its defense to thisaction (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, theSupreme Court properly denied FMCC's renewed motion for summary judgment.
FMCC's remaining contention is academic in light of our determination. Dillon, J.P., Eng,Belen and Hall, JJ., concur.