Opinion
October 6, 1992
Appeal from the Supreme Court, New York County (Harold Baer, Jr., J.).
The determination denying plaintiff leave to amend its third party complaint in the prior action did not purport to reach the merits of plaintiff's claim for attorneys' fees under the indemnity agreement now at issue, and is accordingly not res judicata as to the present action. The cause of action asserted is one for indemnity, arising out of a contractual duty imposed on defendant to reimburse the cost of plaintiff's legal defense — not to furnish a defense ab initio. Under these circumstances, no reason appears to depart from the rule that a cause of action for indemnity accrues upon payment. "[S]ince the cause of action is not complete until loss is suffered, familiar Statute of Limitations principles dictate that accrual occurs upon payment by the party seeking indemnity." (McDermott v City of New York, 50 N.Y.2d 211, 217 [citations omitted].) Defendant has failed to establish that more than six years have elapsed since the payment of counsel fees. We have considered the remaining arguments and find them to be without merit.
Concur — Sullivan, J.P., Milonas, Kupferman and Rubin, JJ.