SAUER v. The Boldt Construction Company, Defendant-Appellant, et al., Defendant.

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Supreme Court, Appellate Division, Fourth Department, New York.

Mark E. SAUER, et al., Plaintiffs, v. XEROX CORPORATION, Defendant-Respondent, The Boldt Construction Company, Defendant-Appellant, et al., Defendant.

Decided: September 28, 2001

PRESENT:  PIGOTT, JR., P. J., HAYES, HURLBUTT, BURNS and GORSKI, JJ. Glenn E. Pezzulo, for defendant-appellant. Richard M. Doyle, for defendant-respondent.

Supreme Court properly granted the motion of defendant-third-party plaintiff Xerox Corporation (Xerox) seeking attorney's fees and costs associated with its defense of the underlying Labor Law action.   Pursuant to a contract between Xerox, the owner of the premises, and defendant-third-party plaintiff The Boldt Construction Company (Boldt), the construction manager, Boldt was obligated to indemnify Xerox for attorney's fees and costs incurred in the defense of an action arising out of the work of Boldt or its subcontractors.   Plaintiff Mark E. Sauer, the employee of an electrical subcontractor, was injured when he fell into an open trench at the construction site.   In accordance with a conditional order of indemnification granted in 1997, Boldt assumed the defense of Xerox.   Boldt eventually settled the underlying action, without the knowledge of Xerox.   When Xerox thereafter learned of the settlement, Xerox demanded that Boldt pay its attorney's fees and costs and, when Boldt refused, brought this motion.

Boldt contends that the court erred in granting the motion of Xerox because there is no finding of negligence, liability, or admission of fault on the part of Boldt in the conditional order of indemnification, and the conditional order is unenforceable in the absence of such a finding or an admission in the stipulation of discontinuance.   We disagree.   The propriety of the conditional order is not before us and that order obligated Boldt to pay those attorney's fees and costs irrespective of whether Boldt was ordered to pay damages or admitted fault (see, Colyer v. K Mart Corp., 273 A.D.2d 809, 810, 709 N.Y.S.2d 758).

Order unanimously affirmed with costs.