Reynolds v. Ciminelli-Walbridge (A Joint Venture)

—Order unanimously affirmed without costs. Memorandum: Plaintiffs motion for summary judgment on liability under Labor Law § 240 was granted against defendants-third-party plaintiffs, Ciminelli-Walbridge and State University Construction Fund (SUCF). The cross motion of Ciminelli-Walbridge and SUCF and the cross motion of ALP Steel Corporation (ALP) for summary judgment seeking common-law indemnification from third-party defendant, Specialty Erectors, Inc. (Specialty), was granted, conditioned on plaintiffs receiving a money judgment against Ciminelli-Walbridge, SUCF and ALP. Specialty thereafter entered into a settlement agreement with plaintiff that absolved Ciminelli-Walbridge and SUCF from all liability. Also, all of plaintiffs claims against ALP have been dismissed or discontinued.

We reject the contention of Specialty that, because there was no money judgment, it is not responsible for the counsel fees, costs and disbursements of Ciminelli-Walbridge, SUCF and ALP. Because their cross motions were granted, they are entitled to recover counsel fees, costs and disbursements incurred in their defense of plaintiffs action (see, Chapel v Mitchell, 84 NY2d 345, 347-348). (Appeal from Order of Supreme Court, Erie County, Notaro, J. — Summary Judgment.) Present — Hayes, J. P., Wisner, Pigott, Jr., Scudder and Callahan, JJ.