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Indemnification Clause

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF QUEENS

SHORT-FORM ORDER

Present: Arthur W. Lonschein, Justice IA Part 2

Index Number...........01146/97

Motion Date............5/4/99

APHRODITE JEWELRY, INC.,

Plaintiff,                                        

-against-

D& W CENTRAL STATION ALARM CO., INC.,

Defendant.

The following papers numbered 1 to 11I read on this motion by the defendant for summary judgment on the counterclaim; cross-motion by the plaintiff for summary judgment dismissing the counterclaim.

Notice of Motion - Affidavits - Exhibits - Service I - 4; Notice of Cross-Motion - Affidavits - Exhibits - Service 5 - 8; Answering Affidavits - Exhibits - Service 9 - 11

Upon the foregoing papers it is ORDERED that this motion is granted, to the extent indicated, and the cross-motion is denied.

The defendant shall have summary judgment on the counterclaim for indemnification, and shall recover its reasonable attorney's fees from the plaintiff. The contract between the parties specifically provides for indemnification for all claims arising out of the defendant's "performance, negligent performance or failure to perform its obligations under this contract." The complaint, which has been dismissed, alleged negligent performance of the contract, and so is squarely covered by the indemnification clause. Hopper Assocs. v AGS Computers, Inc., 74 NY2d 487, relied on by the plaintiff, is not to the contrary, since the contract in that case contemplated indemnification against claims by third parties, while the contract here clearly contemplates claims between the parties.

The court rejects, however, defendant's disingenuous excuse for failing to produce a witness for deposition as required by the compliance conference order. The defendant shall produce a witness for deposition on June 9,1999, at 9:30 a.m., in the General Courthouse, 88-11 Sutphin Blvd., Jamaica, NY. This deposition shall continue from day to day until completed, and may not be adjourned without the written approval of the court. All disputes arising during the course of the deposition shall be presented to the court for immediate resolution (see, Amer. Reliance Ins. Co. v National Gen. Ins. Co., 174 AD2d 591). Upon the completion of the deposition a note of issue may be served and filed.

Dated: May 20, 1999

Arthur W. Lonschein

J. S. C.