Marinelli v. Oceanside Knolls, Inc.

In an action to recover damages for personal injuries, the third-party defendant appeals from an interlocutory judgment of the Supreme Court, Nassau County (DeMaro, J.), entered August 26, 1997, which is in favor of the defendant third-party plaintiff on the third-party complaint for common-law indemnification and awarded attorney’s fees and expenses in the sum of $10,270.

Ordered that the interlocutory judgment is modified, on the law, by deleting the provision awarding attorney’s fees and expenses in the sum of $10,270, and remitting the matter to the Supreme Court, Nassau County, for a hearing on the amount of reasonable attorney’s fees and expenses to be awarded; as so modified, the interlocutory judgment is affirmed, with costs to the respondent.

We agree with the Supreme Court that the defendant third-party plaintiff was entitled to summary judgment on its third-party cause of action for common-law indemnification (see, Eccleston v Berakha, 233 AD2d 417 ; Dawson v Pavarini Constr. Co., 228 AD2d 466 ; Danaher v Notarfrancesco, 213 AD2d 444 ; McNair v Morris Ave. Assocs., 203 AD2d 433 ).

However, the defendant third-party plaintiff is entitled to recover its attorney’s fees and expenses incurred in defending the plaintiffs claim as part of its common-law indemnification claim (see, Eccleston v Berakha, supra). Since the reasonable