Fourth Department — Indemnification: Colonial Surety Company v. Genesee Valley Nurseries Inc., et al.

Appellate Division, Fourth Department

Indemnification

Attorney’s Fees

Colonial Surety Company v. Genesee Valley Nurseries Inc., et al.
CA 11-02262
Appealed from Supreme Court, Allegany County

Background: The plaintiff commenced an action seeking damages pursuant to an indemnification agreement with the defendants. The court had struck the defendant’s answer after he had failed to post a certain amount of money as security for his obligations pursuant to the agreement. The court entered judgment against him, followed by two amended judgments. The plaintiff argued that it was in error for the court to deny its motion to amend the judgment to include attorney’s fees that the plaintiff incurred while attempting to collect upon the judgment and to prevent the defendant from discharging that judgment in bankruptcy.

Ruling: The Appellate Division vacated the order denying the plaintiff’s request for attorney’s fees. The Appellate Division found that the indemnification agreement provided that the defendant agreed to indemnify and to “save harmless from any and all loss, costs, damages or expenses … including fees of attorneys.”

Edward P. Yankelunas of Underberg & Kessler LLP for the plaintiff-appellant; Paul W. O’Brien, pro se