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JPMORGAN CHASE BANK, N.A., PLAINTIFF, v. LUXOR CAPITAL, LLC, def-ap

8868. JPMORGAN CHASE BANK, N.A., PLAINTIFF, v. LUXOR CAPITAL, LLC, def-ap — LUXOR CAPITAL, LLC, Third-Party plf-ap, v. CREDIT INDUSTRIEL ET COMMERCIAL, Third-Party def-res — Porzio, Bromberg & Newman, P.C., New York (Peter J. Gallagher of counsel), for ap — Jenner & Block LLP, New York (Carletta F. Higginson of counsel), for res — Order, Supreme Court, New York County (Eileen Bransten, J.), entered July 26, 2011, which, to the extent appealed from as limited by the briefs, denied defendant/ third-party plaintiff Luxor's motion for summary judgment on its contractual indemnification claim against third-party defendant Credit Industriel et Commercial (CIC), unanimously affirmed, with costs.

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8868. JPMORGAN CHASE BANK, N.A., PLAINTIFF, v. LUXOR CAPITAL, LLC, def-ap — LUXOR CAPITAL, LLC, Third-Party plf-ap, v. CREDIT INDUSTRIEL ET COMMERCIAL, Third-Party def-res — Porzio, Bromberg & Newman, P.C., New York (Peter J. Gallagher of counsel), for ap — Jenner & Block LLP, New York (Carletta F. Higginson of counsel), for res — Order, Supreme Court, New York County (Eileen Bransten, J.), entered July 26, 2011, which, to the extent appealed from as limited by the briefs, denied defendant/ third-party plaintiff Luxor’s motion for summary judgment on its contractual indemnification claim against third-party defendant Credit Industriel et Commercial (CIC), unanimously affirmed, with costs.

The indemnification clause in the Loan Syndication and Trading Association agreement at issue provides, among other things, that CIC shall indemnify Luxor for any costs or expenses arising out of a breach of CIC’s representations and warranties under the agreement. The IAS court correctly denied Luxor’s motion as premature, as it cannot be determined on this record whether CIC breached the LSTA agreement. CIC’s duty to defend is not broader than its duty to indemnify (see Inner City Redevelopment Corp. v. Thyssenkrupp El. Corp., 78 AD3d 613, 613 [1st Dept 2010]), and the indemnification clause does not apply to the mere assertion of claims, regardless of their outcome (cf. Bradley v. Earl B. Feiden, Inc., 8 NY3d 265, 275 [2007]).

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