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Jemal v. Lucky Insurance Co.

Appellate Division of the Supreme Court of New York, Second Department
Apr 5, 1999
260 A.D.2d 352 (N.Y. App. Div. 1999)

Opinion

April 5, 1999

Appeal from the Supreme Court, Nassau County (Carter, J.).


Ordered that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is denied, and the complaint is reinstated insofar as asserted against the defendant Chong Ho Kim d/b/a Accessories Unlimited.

In determining the parties' respective motion and cross motions for summary judgment, the Supreme Court properly entertained the issue of whether the plaintiffs were entitled to contractual indemnification based on the indemnification covenant contained in the rider to the lease involved in this case, even though this cause of action was not pleaded in the complaint ( see, Matter of Belich, 234 A.D.2d 544; Costello Assocs. v. Standard Metals Corp., 99 A.D.2d 227; Dampskibsselskabet Torm A/S v. Thomas Paper Co., 26 A.D.2d 347, 352).

Where a party voluntarily settles a claim, he must demonstrate that he was legally liable to the party whom he paid and that the amount of settlement was reasonable in order to recover against an indemnitor ( see, Dunn v. Uvalde Asphalt Paving Co., 175 N.Y. 214; Parseghian v. Golden Plum Fruit Corp., 186 A.D.2d 546; Abrams v. Milwaukee Elec. Tool Corp., 171 A.D.2d 930, 931; Trojcak v. Wrynn, 45 A.D.2d 770; Codling v. Paglia, 38 A.D.2d 154, mod on other grounds 32 N.Y.2d 330). There exist issues of fact as to whether the plaintiff landlord Joseph Jemal was legally liable to the injured plaintiff in the underlying action and whether the amount of the settlement was reasonable. Therefore, the cross motion for summary judgment dismissing the complaint insofar as asserted against the defendant tenant Chong Ho Kim d/b/a Accessories Unlimited should have been denied.

O'Brien, J. P., Ritter, Joy and Altman, JJ., concur.


Summaries of

Jemal v. Lucky Insurance Co.

Appellate Division of the Supreme Court of New York, Second Department
Apr 5, 1999
260 A.D.2d 352 (N.Y. App. Div. 1999)
Case details for

Jemal v. Lucky Insurance Co.

Case Details

Full title:JOSEPH JEMAL et al., Appellants, v. LUCKY INSURANCE COMPANY, LTD., et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 5, 1999

Citations

260 A.D.2d 352 (N.Y. App. Div. 1999)
687 N.Y.S.2d 717

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