"would have been liable" in the federal action and that it had "no good defense to liability" in that
action in order to obtain indemnification (see Tenant's memorandum at 14). Tenant
asserts that Landlord failed to establish this. The court finds this argument to be unavailing. The
cases Tenant cites in support of its argument provide that the indemnitee [*13](landlord, in this case) must make the aforementioned showing
only in the event that the indemnitee fails to notify the indemnitor (tenant, in this case) of the
claims against the indemnitee, or "having notified [the indemnitor], refuses to accept proffered
assistance" from the indemnitor (L.B. Kaye Assoc. v Libov, 139 AD2d 440 [1st Dept
1988]; Feuer v Menkes Feuer, Inc., 8 AD2d 294, 299 [1st Dept 1959]).
In this case, Tenant was obviously aware of the claims against Landlord in the federal action,
as Tenant was also sued in that action. Moreover, Landlord's counsel asserts that both parties had
retained separate counsel in the ADA action and that they initially agreed to try to work together
to settle the lawsuit, but the agreement fell apart and Landlord settled the action without any
contribution from Tenant (see Landlord's motion, Freeman's affidavit at ¶¶
12-14). Tenant does not refute these contentions and there is no indication that Tenant proffered
assistance and Landlord refused it. Accordingly, the cases Tenant cites are inapplicable (see
e.g. L.B. Kaye Assoc., 139 AD2d 440 [motion for summary judgment premature where
movant-indemnitee elected to proceed with counsel of her own choosing, rather than the counsel
proffered by the indemnitor]).
Given the foregoing, Tenant is not entitled to summary judgment dismissing the first
counterclaim.