Colonial Surety Company v. A&R Capital Associates et al

Filing 33

ORDER: As set forth in the Court's June 12, 2017 Memorandum of Decision and Order, Plaintiff's renewed motion for summary judgment is GRANTED as to Plaintiff's request, under the Indemnification Agreement, for summary judgment in the amount of $650,025.86. See attached Memorandum of Decision and Order for details. Ordered by Judge LaShann DeArcy Hall on 6/12/2017. (Nuni, Joshua)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------------x
COLONIAL SURETY COMPANY,
MEMORANDUM OF
DECISION AND ORDER
13-CV-7214 (LDH) (ARL)

Plaintiff,
-againstA&R CAPITAL ASSOCIATES, A&R
DEVELOPERS CORP., and REZA SHAIBANI,
Defendants.
------------------------------------------------------------------x

LASHANN DEARCY HALL, United States District Judge:
Plaintiff Colonial Surety Company brings this action to enforce an indemnity agreement
executed between Plaintiff and Defendants A&R Capital Associates, A&R Developers Corp.,
and Reza Shaibani. On March 31, 2017, Plaintiff’s motion for summary judgment was granted,
in part, and denied, in part. (See March 31, 2017 Mem. & Order, ECF No. 29.) Of significance
to the instant order, Plaintiff’s motion was denied as to its request for contractual indemnification
in the amount of $650,025.86. (See id.) On April 13, 2017, the Court granted Plaintiff leave, in
the interest of justice, to supplement the record with a sworn, itemized statement of its losses,
costs, and expenses, and to renew its motion for summary judgment. (See April 13, 2017 Min.
Entry & Order.) On April 20, 2017, Plaintiff filed a motion to renew its motion for summary
judgment. (ECF No. 32.) Attached to Plaintiff’s motion was a sworn, itemized statement of its
losses, costs, and expenses not previously submitted to the Court. (ECF No. 32-2.) On April 21,
2017, the Court granted Plaintiff’s motion to renew, limited only to the issue of contractual
indemnification. (See April 21, 2017 Order.)

1

DISCUSSION
The Court assumes familiarity with the undisputed facts of the case. (See March 31,
2017 Mem. & Order 1-4.) In relevant part, however, on or about November 10, 2010,
Defendants, as indemnitors, executed and delivered a General Indemnity Agreement (the
“Indemnity Agreement”) in favor of Plaintiff, as indemnitee. (Defs.’ 56.1 Statement ¶ 1, ECF
No. 27-15; Nunziata Aff. Ex. A, at 1, ECF No. 27-3.) Pursuant to the terms of the Indemnity
Agreement, Defendants agreed to indemnify and hold harmless Plaintiff from and against all
losses, costs, and expenses incurred in connection with (a) Plaintiff’s issuance of bonds on behalf
of Defendant A&R Capital, and/or (b) Plaintiff’s enforcement of the Indemnity Agreement.
(Defs.’ 56.1 Statement ¶ 2.) Specifically, Paragraph 3 of the Indemnity Agreement obliges
Defendants to:
[I]ndemnify and save harmless [Plaintiff] from and against any and all (i) demands,
liabilities, losses, costs, damages or expenses of whatever nature or kind, including all
fees of attorneys and all other expenses, including but not limited to costs and fees of
investigation, adjustment of claims, procuring or attempting to procure the discharge of
Bonds, enforcement of any Contract with [Defendants], and in attempting to recover
losses or expenses from [Defendants], or third parties, whether or not [Plaintiff] shall
have paid out any or all such claims, (ii) amounts sufficient to discharge any claim made
against [Plaintiff] on any Bond, which amounts may be used by [Plaintiff] to pay such
claim, or may be held by [Plaintiff] as collateral security against any loss on any Bond,
and (iii) any premiums due on Bonds issued by the [Plaintiff] on behalf of the Principal.
(Nunziata Aff. Ex. A ¶ 3.) Further, Paragraph 4(D) of the Indemnity Agreement (the “Prima
Facie Clause”) specifies that “[i]n any claim or suit hereunder, an itemized statement of the
aforesaid loss and expenses, sworn by an officer of [Plaintiff], or the vouchers or other evidence
of disbursement by [Plaintiff], shall be prima facie evidence of the fact and extent of the liability
hereunder of [Defendants].” (Nunziata Aff. Ex. A ¶ 4(D).)
The sworn itemized statement submitted by Plaintiff in connection with its renewed
motion for summary judgment complies with the requirements of Paragraph 4(D). As such,
2

Plaintiff has made a prima facie showing entitling it to indemnification in the sum of
$650,025.86. Defendants have offered no arguments to rebut this prima facie showing, despite
being afforded an opportunity to do so. (See April 21, 2017 Order (“Defendants may submit a
response, if any, to Plaintiff’s renewed motion for summary judgment on or before May 5,
2017.”).) Accordingly, Plaintiff’s renewed motion for summary judgment for contractual
indemnification is granted.
CONCLUSION
Based on the foregoing, Plaintiff’s renewed motion for summary judgment is GRANTED
as to Plaintiff’s request, under the Indemnification Agreement, for summary judgment in the
amount of $650,025.86.
Dated: Brooklyn, New York
June 12, 2017

SO ORDERED:
/s/LDH
LASHANN DEARCY HALL
United States District Judge

3