VAN DEVENTER v. Credit Suisse First Boston, et al., Defendants. (2008)

Order, Supreme Court, New York County (Herman Cahn, J.), entered July 14, 2006, which, inter alia, held that defendants-respondents are not required to indemnify plaintiffs for costs and expenses, including reasonable attorneys' fees, incurred in plaintiffs' prosecution of this action, unanimously affirmed, with costs.

 A promise by respondents to indemnify plaintiffs in an action brought by plaintiffs against respondents is not “unmistakably clear” from the subject agreement (see Hooper Assoc. v. AGS Computers, 74 N.Y.2d 487, 492, 549 N.Y.S.2d 365, 548 N.E.2d 903 [1989] ), which unambiguously limited respondents' obligation to indemnify plaintiffs to the defense of any actual or threatened action or proceeding;  plaintiffs' interpretation would render such language meaningless (see Beal Sav. Bank v. Sommer, 8 N.Y.3d 318, 324, 834 N.Y.S.2d 44, 865 N.E.2d 1210 [2007] ).   Contrary to plaintiffs' contention, respondents' obligation to indemnify was not broadened by the “any and all” or “to the fullest extent permitted by law” language in the indemnification provision (see Sequa Corp. v. Gelmin, 851 F.Supp. 106, 110-111 [1994];  cf. Murphy v. Columbia Univ., 4 A.D.3d 200, 202-203, 773 N.Y.S.2d 10 [2004] ).   We note that our decision in Salovaara v. Eckert, 32 A.D.3d 708, 821 N.Y.S.2d 59 [2006], modfg. 6 Misc.3d 1005(A), 2005 WL 41560 did not approve of the motion court's reasoning on which plaintiffs rely.   Concerning plaintiffs' claim of an inconsistency between the decision and order, since the record does not contain any counterclaims brought by nonparties to the subject agreement, any determination as to respondents' obligation to indemnify plaintiffs with respect to any such counterclaims would be premature.