New York Remains Inhospitable To Claims For Attorneys' Fees By Indemnified Parties, Absent Explicit Language In Indemnification Agreement To The Contrary


In Gotham Partners, L.P. v. High River, L.P., Index No. 602582/04 (App. Div. 1st Dep’t July 20, 2010) (“Gotham Partners”), Judge Saxe held that the indemnification clause in a purchase contract did not permit a seller to recover attorneys’ fees from a buyer after the seller successfully sued for breach of contract, concluding that the language of the indemnification clause fell short of satisfying the exacting “unmistakable intent” standard set forth by the Court of Appeals in Hooper Assoc., Ltd. v. AGS Computers, Inc., 74 N.Y.2d 487 (1989) (“Hooper”). The ruling reversed the decision of Judge Bransten of the Commercial Division granting summary judgment to the seller. Gotham Partners, L.P. v. High River L.P., Index No. 602582/04 (Sup Ct, NY County, January 5, 2009).

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