Opinion
April 14, 1988
Appeal from the Supreme Court, New York County (C. Beauchamp Ciparick, J.).
The motion of third-party plaintiff, Rhona Libov, for summary judgment declaring third-party defendant, Douglas Elliman-Gibbons Ives, Inc., liable under the indemnity agreement was properly denied. Absent a specific provision in the contract of indemnity, an indemnitee is not required to give the indemnitor notice of the claims against him. (Delaware Hudson R.R. Corp. v Adirondack Farmers Coop. Exch, 33 A.D.2d 962, 963 [3d Dept 1970], citing Conner v. Reeves, 103 N.Y. 527, 529-530.) If, however, the indemnitee fails to notify the indemnitor, "or having notified him, refuses to accept proffered assistance, he proceeds at his own risk with regard to any judgment or settlement which may ultimately ensue. Then, in order to recover reimbursement he must establish that he would have been liable and that there was no good defense to the liability" (Feuer v. Menkes Feuer, Inc., 8 A.D.2d 294, 299 [1st Dept 1959]; Baker v. Northeastern Indus. Park, 73 A.D.2d 753, 754 [3d Dept 1979]). Inasmuch as third-party plaintiff elected to proceed with counsel of her own choosing, rather than the counsel proffered by her indemnitor, and as her liability to plaintiff has yet to be determined, her motion was premature.
Concur — Sullivan, J.P., Carro, Milonas, Rosenberger and Ellerin, JJ.