SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND
2007 NY Slip Op 8993; 45 A.D.3d 638; 845 N.Y.S.2d 823; 2007
N.Y. App. Div. LEXIS 11856
November 13, 2007, Decided
THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF
THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO
REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
COUNSEL: Kirschenbaum & Kirschenbaum, P.C., Garden City, N.Y. (Kenneth
Kirschenbaum of counsel), for appellant.
Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP, Mineola, N.Y. (Nicole
Licata-McCord of counsel), for respondent.
JUDGES: STEPHEN G. CRANE, J.P., ANITA R. FLORIO, ROBERT A. LIFSON, EDWARD D.
CARNI, JJ. CRANE, J.P., FLORIO, LIFSON and CARNI, JJ., concur.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the
defendant Affiliated Central, Inc., appeals from an order of the Supreme
Queens County (Dorsa, J.), entered March 20, 2007, which denied its motion for
summary judgment on its cross claim for indemnification against the defendant
Wayne Electro Systems, Inc.
ORDERED that the order is reversed, on the law, with costs, the motion of the
defendant Affiliated Central, Inc., for summary judgment on its cross claim is
granted, and the matter is remitted to the Supreme Court, Queens County, for a
hearing to fix the appellant's costs of the defense of this action, including
reasonable attorney's fee.
The defendant Wayne Electro Systems, Inc. (hereinafter Wayne), entered into
an agreement with the plaintiff on January 12, 2006, to install and service an
alarm system at 102-17 44th Avenue in Corona, New York (hereinafter the
property). The defendant Affiliated Central, Inc. (hereinafter Affiliated),
provided alarm monitoring services under a separate agreement it entered into
with Wayne (hereinafter the dealer agreement). The dealer agreement contained
indemnity clause by which Wayne agreed to fully indemnify Affiliated and hold
harmless. The property allegedly was burglarized on January 23, 2006, as a
result of which the plaintiff commenced this action against, among others,
Wayne and Affiliated to recover damages for breach of contract. In its answer,
Affiliated asserted, inter alia, a cross claim against Wayne based on the
indemnification provision under the dealer agreement and moved for summary
judgment on that cross claim. The Supreme Court denied the motion. We reverse.
Affiliated established its prima facie entitlement to judgment as a matter of
law (see Cox v Kingsboro Med. Group, 88 NY2d 904, 906, 669 N.E.2d 817, 646
N.Y.S.2d 659; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 476
642, 487 N.Y.S.2d 316) through the proof adduced on its motion, which included
the affidavit of its vice president appending, inter alia, copies of the
agreement and the agreement between the plaintiff and Wayne. In opposition,
Wayne failed to raise a triable issue of fact warranting the denial of summary
judgment (see 9394 LLC v Farris, 10 AD3d 708, 710-711, 782 N.Y.S.2d 281) and
failed to demonstrate anything more than the "mere hope" (Companion Life Ins.
Co. of N.Y. v All State Abstract Corp., 35 AD3d 519, 521, 829 N.Y.S.2d 536)
additional discovery would reveal facts sufficient to defeat Affiliated's
(see Min Whan Ock v City of New York, 34 AD3d 542, 543, 824 N.Y.S.2d 651).
To the extent that the Supreme Court's conclusion was predicated on General
Obligations Law Â§ 5-322.1, it was error because that provision does not govern
the dealer agreement herein (see Goll v ABC, Inc., 10 AD3d 672, 783 N.Y.S.2d
; Auburn Steel Co. Inc. v Westinghouse Elec. Corp., 158 AD2d 938, 551 N.Y.S.2d
101; cf. Tate v Clancy-Cullen Stor. Co., 178 AD2d 292, 293-295, 577 N.Y.S.2d
; Appliance Assoc. v Dyce-Lymen Sprinkler Co., 123 AD2d 512, 513, 507 N.Y.S.2d
104; Failla v A.F.A. Protective Sys., 139 AD2d 693, 527 N.Y.S.2d 448; El
Automatic Burglar Alarm Corp., 106 Misc 2d 559, 561-562, 434 N.Y.S.2d 330).
We remit this matter to the Supreme Court, Queens County, for a hearing to
determine the amount of the appellant's costs of defense of this action,
including a reasonable attorney's fee, for which Wayne is responsible under
indemnification provision of the dealer agreement.
CRANE, J.P., FLORIO, LIFSON and CARNI, JJ., concur.