| Parkway Pediatric & Adolescent Medicine LLC v Vitullo |
| 2010 NY Slip Op 03547 [72 AD3d 1513] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| Parkway Pediatric and Adolescent Medicine LLC, Respondent, vBenedetto Vitullo, M.D., Appellant, and Gretchen Smith-Burke, M.D., et al.,Respondents. |
—[*1] Chamberlain D'Amanda Oppenheimer & Greenfield LLP, Rochester (Matthew J. Fusco ofcounsel), for plaintiff-respondent and defendants-respondents.
Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), enteredAugust 14, 2009 in an action for, inter alia, breach of contract. The order denied the motion ofBenedetto Vitullo, M.D. for summary judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff medical practice commenced this action seeking damages for, interalia, breach of fiduciary duty and breach of contract. Benedetto Vitullo, M.D. (defendant), one ofplaintiff's members, contends on appeal that Supreme Court erred in denying his motion forsummary judgment seeking a determination that, pursuant to the terms of the OperatingAgreement (agreement) between plaintiff and defendant, plaintiff must indemnify him for theattorney's fees and costs that he incurred in defending this action. We affirm.
"Inasmuch as a promise by one party to a contract to indemnify the other for attorney's feesincurred in litigation between them is contrary to the well-understood rule that parties areresponsible for their own attorney's fees, the court should not infer a party's intention to waivethe benefit of the rule unless the intention to do so is unmistakably clear from the language of thepromise" (Hooper Assoc. v AGS Computers, 74 NY2d 487, 492 [1989]). Here, the broadindemnification clause in the parties' agreement does not even refer to litigation between theparties to the agreement. The agreement thus does not make it "unmistakably clear" that theparties intended that plaintiff must indemnify defendant for attorney's fees and costs arising fromthe instant litigation (id.; seeDigital Broadcast Corp. v Ladenburg Thalmann & Co., Inc., 49 AD3d 412 [2008]; Wal-Mart Stores, Inc. v United States Fid.& Guar. Co., 29 AD3d 315, 316 [2006]; cf. Western Beef Mariners Harbor, LLC v Vornado Forest Plaza, LLC,61 AD3d 745 [2009]). Present—Smith, J.P., Fahey, Carni, Lindley and Sconiers, JJ.