Matter of Merkin v Berman

Matter of Merkin v Berman 2015 NY Slip Op 05785 Decided on July 2, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 2, 2015
Mazzarelli, J.P., Friedman, Richter, Manzanet-Daniels, Gische, JJ.
15590 652415/12

[*1] In re J. Ezra Merkin, Petitioner/Respondent-Respondent,

v

Joshua M. Berman, etc., Respondent/Petitioner-Appellant.

Brickman Leonard & Bamberger, P.C., New York (David E. Bamberger of counsel), for appellant.

Dechert LLP, New York (Daphne T. Ha of counsel), for respondent.

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered on or about July 9, 2014, which, to the extent appealed from, granted so much of the petition to confirm an arbitration award as seeks indemnification, unanimously reversed, on the law, without costs, the indemnification claim severed and continued as an action, and the matter remanded for further proceedings on the merits.

CPLR article 75 does not authorize a claim for contractual indemnification (see CPLR 103[b]). Therefore, the claim should be severed from the special proceeding and continued as a plenary

action (CPLR 407; see City of New York v Candelario , 223 AD2d 617 [2d Dept 1996]). The indemnification claim was not susceptible to summary resolution.

We need not reach respondent's remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 2, 2015

CLERK