LANGEVIN v. P.A. Langevin Inc., Third-Party Defendant-Appellant. (1999)

Appeal from an order of the Supreme Court (Demarest J.,) entered July 24, 1998 in St. Lawrence County, which granted defendant and third-party plaintiffs' motion for summary judgment against third-party defendant.

In this personal injury action, Supreme Court granted plaintiffs' motion for partial summary judgment against defendants on the issue of liability under Labor Law § 240(1) and granted defendants' cross motion for an order awarding common-law indemnification and counsel fees against third-party defendant.   In granting the cross motion, Supreme Court directed that defendants furnish third-party defendant with an itemized statement of the legal fees and disbursements incurred in defense of the action and that the sum owed by third-party defendant be determined by agreement of the parties or, in the event that an agreement could not be reached, following a hearing.   Defendants provided an itemized statement in accordance with the court's directive but when 14 months elapsed without receiving payment, they filed the instant motion for an award of counsel fees claiming that third-party defendant agreed to pay the $6,143.68 in fees and disbursements itemized in the statement.   Supreme Court granted the motion following a hearing and third-party defendant appeals.

Inasmuch as third-party defendant failed to object to the itemized statement at the time it was received and has never denied that it agreed to pay the amount set forth therein, we decline to disturb Supreme Court's order granting defendants' motion (see, Fabricius v. Fabricius, 199 A.D.2d 695, 605 N.Y.S.2d 415).   The fact that counsel for third-party defendant received minimal notice of the hearing conducted on the motion does not warrant a contrary result since the parties' agreement eliminated the need for a hearing under the terms of Supreme Court's prior order.

Third-party defendant's remaining arguments have been reviewed and found to be unpersuasive.

ORDERED that the order is affirmed, with costs.

MIKOLL, J.

CARDONA, P.J., MERCURE, YESAWICH JR. and CARPINELLO, JJ., concur.