| Adesso Caf|fe Bar & Grill, Inc. v Burton |
| 2010 NY Slip Op 05710 [74 AD3d 1253] |
| June 29, 2010 |
| Appellate Division, Second Department |
| Adesso CafÉ Bar & Grill, Inc., et al.,Appellants, v Richard Burton et al., Respondents. |
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In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Westchester County(Scheinkman, J.), entered September 9, 2009, as denied that branch of their motion which wasfor summary judgment on so much of the complaint as sought an award of an attorney's fee.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
In January 2008 the plaintiffs and the defendants Richard Burton and Jima Bouldin-Burton(hereinafter together the defendants), entered into a contract whereby the plaintiffs purchased theleasehold and assets of the defendants' business, the Mount Vernon All Star CafÉ. Amongthe contract's many provisions was an indemnification clause which stated, in part: "6.1Indemnification by the Seller. . . [T]he seller will . . .indemnify and hold harmless the Purchaser . . . in respect of . . . anyand all . . . costs and expenses incurred or suffered by any Seller Indemnified partythat result from, relate to or arise out of . . . any material misrepresentation, breachof material warranty or nonfulfillment of any material agreement or covenant on the part of theSeller under this Agreement or from any misrepresentation in or omission from any certificate,schedule, statement, document or instrument furnished to the Purchaser pursuant hereto inconnection with the negotiation, execution or performance of this Agreement . . .6.3 Procedure. Notice must be given within a reasonable time after the discovery of anyfact or circumstance on which a party could claim indemnification . . . No claim forwhich indemnification is asserted shall be settled or compromised without written consent of theSeller and the Purchaser." After the closing, the plaintiffs alleged that the defendants had madenumerous material [*2]misrepresentations, and they commencedthis action, inter alia, to recover damages for breach of contract, fraud, and materialmisrepresentations. The complaint also sought an award of an attorney's fee. Subsequently, theplaintiffs moved, among other things, for summary judgment on the complaint. The plaintiffsalso sought an award of an attorney's fee, based upon the indemnification clause of the contract.The Supreme Court granted various relief to the plaintiffs, but "rejected [the] claim for attorneys'fees," finding that the agreement was not unmistakably clear that the defendants agreed toindemnify the plaintiffs for counsel fees "incurred in prosecuting this action to obtainindemnification on the damages [which the plaintiff] sustained as a result of the . . .defendants' breach of contract." We affirm.
As the Court of Appeals stated in Hooper Assoc. v AGS Computers (74 NY2d 487,491 [1989]): "Under the general rule, attorney's fees are incidents of litigation and a prevailingparty may not collect them from the loser unless an award is authorized by agreement betweenthe parties, statute or court rule . . . [w]ords in a contract are to be construed toachieve the apparent purpose of the parties . . . [t]his is particularly true withindemnity contracts. When a party is under no legal duty to indemnify, a contract assumingthat obligation must be strictly construed to avoid reading into it a duty which the parties did notintend to be assumed. The promise should not be found unless it can be clearly implied from thelanguage and purpose of the entire agreement and surrounding facts and circumstances"(citations omitted; emphasis added). Here, the indemnification language in the contract is not so"unmistakably clear" as to read into the contract the obligation that the defendants were toindemnify the plaintiffs for the attorney's fees incurred by the plaintiffs in prosecuting this action(id. at 492). Indeed, this conclusion is bolstered by the fact that provisions within thesecond part of the contract's indemnification clause, entitled "Procedure," are inconsistent with alawsuit between the parties themselves (id. at 492-493). Where "the language of theparties is not clear enough to enforce an obligation to indemnify, [the courts] are unwilling torewrite the contract and supply a specific obligation the parties themselves did not spell out"(Tonking v Port Auth. of N.Y. & N.J., 3 NY3d 486, 490 [2004]; see Bourne Co. vMPL Communications, Inc., 751 F Supp 55, 57 [1990]; Hooper Assoc. v AGSComputers, 74 NY2d at 491; Matter of A.G. Ship Maintenance Corp. v Lezak, 69NY2d 1 [1986]).
Accordingly, the Supreme Court properly denied that branch of the plaintiffs' motion whichwas for summary judgment on so much of the complaint as sought an award of an attorney's fee.Santucci, J.P., Angiolillo, Dickerson and Austin, JJ., concur.