Posts Categorized: Indemnification and Advancement

Posted: December 25, 2015

Indemnitee Must Prove that Indemnitor Could Have Been Liable at Trial to Recover Settlement

On December 16, 2015, the Second Department issued a decision in Leon Holdings, LLC v. Northville Industries Corp., 2015 NY Slip Op. 09260, holding that indemnification claims by a plaintiff who settled an action should have been dismissed, explaining: To recover a settlement from an indemnitor who had prior notice of the settled claim, an... Read more »

Posted: December 15, 2015

Right To Corporate Indemnification Must Be “Unmistakably Clear”

On December 2, 2015, Justice Kornreich of the New York County Commercial Division issued a decision in Comer v. Krolick, 2015 NY Slip Op. 32274(U), resolving, inter alia, an application for advancement of attorney fees and a cross-motion to dismiss an indemnification claim. The relevant section of the opinion concerned two individual defendants’ application for... Read more »

Posted: June 25, 2015

Settling Party Not Entitled to Contribution from Co-Defendants

On June 18, 2015, the First Department issued a decision in Diversified Group, Inc. v. Marcum & Kliegman LLP, 2015 NY Slip Op. 05265, holding that a settling party is not entitled to contribution under the General Obligations Law. In Diversified Group, the plaintiffs settled claims against them and then asserted claims for contribution against... Read more »

Posted: September 6, 2014

Insured Must Act Promptly to get Advancement of Defense Costs; Past Defense Costs Need not be Paid until any Coverage Litigation is Resolved

On August 27, 2014, Justice Kornreich of the New York County Commercial Division issued a decision in QBE Americas, Inc. v. ACE America Insurance Co., 2014 NY Slip Op. 51330(U), granting in part and denying in part a motion a summary judgment motion seeking advancement of defense costs. This insurance coverage dispute arose from underlying... Read more »

Posted: August 5, 2014

Corporate Officer Awarded Advancement of Fees

On July 24, 2014, Justice Demarest of the Kings County Commercial Division issued a decision in General Plumbing Corp. v. Parklot Holding Co., 2014 NY Slip Op. 31961(U), awarding a corporate officer indemnification and advancement of legal expenses in an action against him by the corporation. In General Plumbing Corp., a commercial landlord-tenant dispute, the... Read more »

Posted: July 5, 2014

Specific Indemnification Provision Trumps General One

On June 24, 2014, the First Department issued a decision in Plymouth Financial Co., Inc. v. Plymouth Park Tax Services LLC, 2014 NY Slip Op. 04686, interpreting conflicting indemnification provisions in an asset purchase agreement. In Plymouth Financial, the parties disagreed on the distribution of a $1 million “hold-back payment” detailed in their asset purchase... Read more »

Posted: May 17, 2014

Prevailing Plaintiff in Derivative Action Entitled to Fees, But From Corporation, Not Defendant

On April 2, 2014, Justice Emerson of the Suffolk County Commercial Division issued a decision in Motherway v. Cartisano, 2014 NY Slip Op. 31215(U), holding that a prevailing plaintiff in a derivative action is not entitled to indemnification from the losing party under BCL § 626(e). In Motherway, the plaintiff prevailed on derivative claims against the... Read more »

Posted: May 16, 2014

Derivative Plaintiff Entitled to Advancement of Attorneys’ Fees to Defend Counterclaims Brought by Corporation

On May 14, 2014, Justice DeStefano of the Nassau County Commercial Division issued a decision in Schlossberg v. Schwartz, 2014 NY Slip Op. 50760(U), ruling that a corporation’s by-laws and New York’s Business Corporations Law (“BCL”) entitled the plaintiff in a shareholder derivative action to advancement of attorneys’ fees and costs incurred in defending counterclaims asserted... Read more »

Posted: March 28, 2014

Defendant Whose CPLR 3220 Offer Was Rejected is Entitled to Her Attorneys’ Fees Related to Proving Damages From Time of Offer

On March 27, 2014, the First Department issued a decision in Abreu v. Barkin & Associates Realty, Inc., 2014 NY Slip Op. 02146, clarifying that an offer of judgment under CPLR 3220 entitles the offering party not just to costs but also to its attorneys’ fees related to proving damages.