KLOCK v. II (1998)

 Supreme Court properly granted the motion of third-party defendant Ames Stores (sued incorrectly as Ames Realty II, Inc.) for partial summary judgment on its counterclaim for contractual indemnification.   The contract provides for indemnification against “any and all injury, loss or damage of whatever nature”, and thus costs and attorney's fees are recoverable (see, Perchinsky v. State of New York, 232 A.D.2d 34, 39, 660 N.Y.S.2d 177, lv. dismissed in part and denied in part 91 N.Y.2d 830, 666 N.Y.S.2d 561, 689 N.E.2d 531;  DiPerna v. American Broadcasting Cos., 200 A.D.2d 267, 269-270, 612 N.Y.S.2d 564;  Lavorato v. Bethlehem Steel Corp., 91 A.D.2d 1184, 1185, 459 N.Y.S.2d 170).   However, we modify the order to limit the recovery to those reasonable attorney's fees and costs incurred in defense of the primary action.   A party is not entitled to contractual indemnification for those attorney's fees and costs incurred in establishing its right to indemnification (see, Perchinsky v. State of New York, supra, at 39, 660 N.Y.S.2d 177;  Lavorato v. Bethlehem Steel Corp., supra, at 1185, 459 N.Y.S.2d 170).

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: