        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

449
CA 11-02262
PRESENT: SMITH, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ.


COLONIAL SURETY COMPANY, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

GENESEE VALLEY NURSERIES, INC., ET AL.,
DEFENDANTS,
AND PAUL W. O’BRIEN, DEFENDANT-RESPONDENT.


UNDERBERG & KESSLER LLP, BUFFALO (EDWARD P. YANKELUNAS OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

PAUL W. O’BRIEN, DEFENDANT-RESPONDENT PRO SE.


     Appeal from an order of the Supreme Court, Allegany County
(Thomas P. Brown, A.J.), entered January 26, 2011. The order denied
plaintiff’s motion to amend a second amended judgment to include
additional attorneys’ fees, interest and other costs.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating that part denying
plaintiff’s motion insofar as it sought to amend the second amended
judgment to include additional attorneys’ fees that plaintiff incurred
in attempting to collect upon that judgment and to prevent defendant
from fraudulently discharging that judgment in bankruptcy and granting
the motion to the extent that it seeks reasonable attorneys’ fees and
as modified the order is affirmed without costs, and the matter is
remitted to Supreme Court, Allegany County, for further proceedings in
accordance with the following Memorandum: Plaintiff commenced this
action seeking damages pursuant to an indemnification agreement with,
inter alia, defendants. Supreme Court subsequently struck the answer
of Paul W. O’Brien (defendant) based on his failure to comply with an
order directing him to post a certain amount of money as security for
his obligations pursuant to the indemnification agreement, and the
court entered judgment against him, followed by an amended judgment
and a second amended judgment. We agree with plaintiff that Supreme
Court erred in denying those parts of its motion to amend the second
amended judgment to include additional attorneys’ fees that plaintiff
incurred in attempting to collect upon that judgment and to prevent
defendant from fraudulently discharging that judgment in bankruptcy.
We therefore modify the order accordingly, and we remit the matter to
Supreme Court to calculate the amount of reasonable attorneys’ fees to
be awarded to plaintiff.

     Initially, we note that plaintiff has not presented any argument
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                                                         CA 11-02262

on appeal concerning that part of its motion seeking to increase the
amount of damages awarded in the second amended judgment by adding
certain postjudgment interest, and it therefore is deemed to have
abandoned that issue (see Ciesinski v Town of Aurora, 202 AD2d 984,
984).

     “Under the general rule, attorney[s’] fees are incidents of
litigation and a prevailing party may not collect them from the loser
unless an award is authorized by agreement between the parties,
statute or court rule” (Hooper Assoc. v AGS Computers, 74 NY2d 487,
491). “[A] contract assuming th[e] obligation [to indemnify with
respect to attorneys’ fees] must be strictly construed to avoid
reading into it a duty [that] the parties did not intend to be
assumed” (Tudisco v Duerr [appeal No. 2], 89 AD3d 1372, 1376 [internal
quotation marks omitted]). Furthermore, a party may not recover
attorneys’ fees arising from litigation with the other party to a
contract unless an intent to provide for such reimbursement “is
unmistakably clear from the language of the promise” (Hooper Assoc.,
74 NY2d at 492; see Parkway Pediatric & Adolescent Medicine LLC v
Vitullo, 72 AD3d 1513).

     Here, the pertinent part of the indemnification agreement
provides that defendant “agree[s] to . . . indemnify and save harmless
[plaintiff] from . . . any and all . . . loss, costs, damages or
expenses of whatever nature or kind, including fees of attorneys and
all other expenses, including . . . costs and fees of . . . attempting
to recover losses or expenses from [defendants] or third parties . .
.” “If [that] broadly phrased agreement to indemnify did not include
legal expenses incurred in [attempting to collect upon a judgment] . .
., it is difficult, if not impossible, to ascertain for what it was
that [defendant] had agreed to indemnify” plaintiff (Breed, Abbott &
Morgan v Hulko, 139 AD2d 71, 73, affd 74 NY2d 686). We therefore
conclude that it “is unmistakably clear from the language of the
[indemnification agreement]” that defendant must indemnify plaintiff
for the costs of attempting to enforce that agreement (Hooper Assoc.,
74 NY2d at 492), including the attorneys’ fees for attempting to
collect upon the second amended judgment and to prevent defendant from
fraudulently discharging that judgment in bankruptcy.

     Plaintiff’s remaining contention is academic in light of our
determination.




Entered:   April 20, 2012                       Frances E. Cafarell
                                                Clerk of the Court
