Opinion
January 31, 1983
Appeal from the Supreme Court, Erie County, Johnson, J.
Present — Dillon, P.J., Simons, Doerr, Boomer and Moule, JJ.
Order granted March 18, 1982 modified in accordance with memorandum, and, as modified, together with order granted March 17, 1982, affirmed, without costs. All concur, Simons, J., not participating. Memorandum: Plaintiff Frank Lavorato, an employee of Furnco Construction Corporation (Furnco) was injured when he fell from a scaffold which had been erected by employees of Furnco on the property of Bethlehem Steel Corporation (Bethlehem) in connection with the performance of certain work pursuant to a contract between the two corporations. In this personal injury action under the Labor Law, Special Term properly granted summary judgment to plaintiffs against defendant Bethlehem on the issue of liability only, and also properly granted to Bethlehem summary judgment over against third-party defendant Furnco on the same issue. In granting judgment over against Furnco, Special Term ordered Furnco to pay "reasonable attorneys' fees incurred by [Bethlehem] in connection with the defense of the primary action and the prosecution of the third-party action". The contract between the parties provided that Furnco shall indemnify Bethlehem and save Bethlehem harmless "from and against all loss or liability for or on account of any injury * * * or damages received or sustained by * * * any employee" of Furnco. We agree that the broad language of the indemnification provision spells out the intention of the parties that Bethlehem would be entitled to an award of counsel fees reasonably incurred in defense of the action brought by plaintiffs (see Cassidy v. Taylor Brewing Malting Co., 79 App. Div. 242; Turner Constr. Co. v. Rockwood Sprinkler Co. of Mass., 249 App. Div. 508, affd 275 N.Y. 635; Murphy v. City of Yonkers, 213 N.Y. 124; Matter of Campbell, 176 Misc. 543; see, also, Bethlehem Steel Corp. v. KLO Welding Erectors, 132 N.J. Super. 496; cf. Tyng v. American Sur. Co., 174 N.Y. 166). Such an award may not be made, however, in connection with Bethlehem's third-party action against Furnco (see 41 Am Jur 2d, Indemnity, § 37). It is well settled that a litigant may not recover damages for the amounts expended in the successful prosecution of its rights ( Mighty Midgets v. Centennial Ins. Co., 47 N.Y.2d 12, 21-22).