Opinion
6229 6230 Index 603656/08
04-05-2018
COLONIAL SURETY COMPANY, Plaintiff–Respondent, v. EASTLAND CONSTRUCTION, INC., et al., Defendants–Appellants.
Cox Padmore Skolnik & Shakarchy LLP, New York (Sanford J. Hausler of counsel), for appellants. McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York (Kevin S. Brotspies of counsel), for respondent.
Cox Padmore Skolnik & Shakarchy LLP, New York (Sanford J. Hausler of counsel), for appellants.
McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York (Kevin S. Brotspies of counsel), for respondent.
Acosta, P.J., Tom, Oing, Moulton, JJ.
Judgment, Supreme Court, New York County (Saliann Scarpulla, J.), entered December 6, 2016, in plaintiff's favor, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered August 11, 2016, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Plaintiff made a prima facie showing of its entitlement to indemnification for payments made in connection with the construction bonds it issued by submitting, in addition to the indemnification agreement and the bonds, an affidavit by its president and an itemized statement of loss and expense, as well as related invoices and checks (see Prestige Decorating & Wallcovering, Inc. v United States Fire Ins. Co., 49 A.D.3d 406, 406–407, 858 N.Y.S.2d 1 [1st Dept. 2008] ; see also Utica Mut. Ins. Co. v. Cardet Constr. Co., Inc., 114 A.D.3d 847, 849, 981 N.Y.S.2d 118 [2d Dept. 2014] ; International Fid. Ins. Co. v. Kulka Constr. Corp., 100 A.D.3d 967, 968, 954 N.Y.S.2d 638 [2d Dept. 2012] ). The fact that plaintiff's president did not explicitly say that plaintiff "honestly believed" it was liable for the claims on which it made payment does not render plaintiff's showing insufficient (see generally Safeco Ins. Co. of Am. v M.E.S., Inc., 2017 WL 1194730, 2017 U.S. Dist LEXIS 47924 [E.D.N.Y., March 30, 2017] ).
In opposition, defendants failed to raise a material question of fact as to whether plaintiff made any payments of bond claims in bad faith, since their affidavits do not allege fraud or collusion by plaintiff in connection with its acceptance of liabilities or payment of claims (see BIB Constr. Co. v Fireman's Ins. Co. of Newark, N.J., 214 A.D.2d 521, 523–524, 625 N.Y.S.2d 550 [1st Dept. 1995] ; Frontier Ins. Co. v. Renewal Arts Contr. Corp., 12 A.D.3d 891, 893, 784 N.Y.S.2d 698 [3d Dept. 2004] ; Peerless Ins. Co. v. Talia Constr. Co., 272 A.D.2d 919, 708 N.Y.S.2d 223 [4th Dept. 2000] ).
Plaintiff's entitlement to the award of attorneys' and consulting fees is demonstrated by the record evidence, including the testimony taken at an inquest on the reasonableness of the fees paid to Beacon Consulting.
We have reviewed defendants' remaining arguments and find them unavailing.