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Westchester Fire Ins. Co. v. Tyree Service Corp.

United States District Court, Eastern District of New York

December 29, 2014

WESTCHESTER FIRE INSURANCE COMPANY, Plaintiff,
v.
TYREE SERVICE CORP., TYREE ENVIRONMENTAL CORP., TYREE HOLDINGS CORP., AMFNCOR, INC., and TYREE EQUIPMENT CORP., Defendants.

Gottesman, Wolgel, Malamy, Flynn & Weinberg, P.C. Attorneys for the Plaintiff by Susanna Requets, Esq., Of Counsel

Brody O'Connor & O'Connor Attorneys for the Defendants by Scott A. Brody, Esq., Of Counsel

DECISION AND ORDER

Arthur D. Spatt United States District Judge

For purposes of the present motions, the following facts are drawn from the amended complaint.

On July 24, 2008, the Defendants Tyree Holdings Corp., Tyree Service Corp., and Tyree Environmental Corp. entered into an indemnity agreement with the Plaintiff Westchester Fire Insurance Company (the "Plaintiff). On July 27, 2011, the Defendants Amincor, Inc., Tyree Holdings Corp., Tyree Service Corp., and Tyree Environmental Corp. entered into a separate indemnity agreement with the Plaintiff.

Both indemnity agreements required the Defendants to indemnify and hold harmless the Plaintiff from any and all liability for losses and expenses, including attorneys' fees. These indemnity agreements were executed in partial consideration of and to induce the Plaintiff to execute certain bonds on behalf of the Defendant Tyree Service Corp.

On September 5, 2014, the Plaintiff commenced this indemnity action. The Plaintiff seeks a judgment in the amount of $308, 969.06.

On September 9, 2014, the Plaintiff filed an amended complaint.

On September 22, 2014, the Plaintiff served the Defendants with a summons and amended complaint. Although the Defendants had until October 14, 2014 to answer, they failed to do so.

On October 16, 2014, the Clerk of the Court noted the default of the Defendants.

On October 22, 2014, the Defendants moved for an extension of time to appear and answer up to and including November 7, 2014.

On October 25, 2014, the Court denied that motion and advised the Defendants that, if they wish, they may move to vacate the underlying default.

On December 5, 2014, the Defendants moved pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 55(c) to ...


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