Opinion
December 29, 1980
In an action to recover legal expenses incurred in defending a prior action, commenced by service of a summons with notice of motion for summary judgment in lieu of complaint pursuant to CPLR 3213, plaintiff appeals from an order of the Supreme Court, Nassau County, dated July 11, 1980, which, inter alia, denied the motion. Order reversed, on the law, with $50 costs and disbursements, the motion is granted to the extent that plaintiff is granted summary judgment on the issue of liability, and the matter is remitted to Special Term for an assessment of damages. In our view, the indemnity agreements, when read together, establish that defendants are responsible for the payment of the expenses incurred by plaintiff in its defense of the underlying litigation. Although a motion under CPLR 3213 was not the appropriate manner in which to commence the instant action, upon argument of the appeal counsel for the respective parties agreed that the only issue was the value of legal services rendered and disbursements incurred. Accordingly, summary judgment is granted as to liability, and the matter is remitted to Special Term for an assessment of damages. Lazer, J.P., Gibbons, Gulotta and Cohalan, JJ., concur.