Since I believe that there is an issue of fact whether defendants were properly placed on notice that *45plaintiff would be invoking its contractual right of indemnification, I dissent.
As part of a bankruptcy proceeding commenced by entities referred to as Centennial Resources, Inc. (Centennial), the predecessor companies of plaintiff (Bankers Trust) and defendant Tri-Links Investment Trust provided a $15 million debtor-in-possession (DIP) loan to Centennial. This loan was memorialized in a Debtor-in-Possession Credit and Guaranty Agreement (DIP Agreement) executed by Centennial as borrower and, inter alia, Tri-Links’ predecessors as lenders. Bankers Trust participated in the agreement both as a lender and as agent for the lenders.
The agreement contained a broad indemnity agreement in favor of Bankers Trust as agent, in which the lenders agreed to indemnify Bankers Trust for “any and all liabilities” it incurred in performing its duties “in any way relating or arising” from the DIP Agreement, excluding gross negligence and willful misconduct.
Defendants initially were minority members of the DIP lending group by reason of the small portion of the loan they funded. Centennial, as part of the bankruptcy proceedings, was negotiating a sale of its assets to a third party, Western Mining and Investments, LLC (WMI). These negotiations resulted in an Asset Purchase Agreement between Centennial and WMI. The majority of the DIP lenders favored the proposed sale; defendants did not. The proposed sale was subject to the approval of the bankruptcy court.
The DIP lenders directed Bankers Trust as agent to inform WMI of the majority position and defendants’ minority opposition. Defendants thereafter purchased the majority of the claims of the DIP lending group. As the new majority, defendants directed Bankers Trust to object to the sale of Centennial’s assets to WMI at the bankruptcy hearing, which objection Bankers Trust duly filed. Bankers Trust then sold its individual interests in the DIP loan to defendants. The bankruptcy court did not approve the sale to WMI.
In January 2002, WMI commenced an action against Bankers Trust in the U.S. District Court for the Western District of Kentucky over the failed sale of Centennial’s assets, claiming it suffered $225 million in damages. The complaint alleged that Bankers Trust made an enforceable oral promise to WMI that the majority of the DIP lenders would approve the sale of Centennial’s assets, and that this alleged promise was breached by *46Bankers Trust’s filing (at defendants’ direction) of the lending group’s objection to the sale. After Bankers Trust argued that WMI’s claims were without merit because it had at all times acted as the agent of a disclosed principal, WMI amended its complaint to add a claim for breach of an alleged “implied warranty of authority” to cause the DIP lending group to approve the transaction.
Bankers Trust retained counsel to defend it in the action but did not formally notify defendants that it had been sued or that it had retained counsel. Defendants allege that Bankers Trust never tendered defense of the WMI action to them or notified them that it intended to seek indemnification.
However, in May 2002, counsel for the Centennial bankruptcy estate sent defendants’ New York counsel a copy of the complaint in the WMI action and advised defendants that Bankers Trust had reserved its indemnification rights against the estate. In May 2003, Bankers Trust’s counsel in the WMI action sent defendants another copy of the WMI complaint and certain other documents relevant to the litigation. From mid-2003 to early 2004, defendants participated in the WMI action as a third party, providing witnesses and documents and actively assisting Bankers Trust in the defense of the action. In fact, at one point during the litigation, defendants refused to turn certain documents over to WMI based on an asserted joint-defense privilege with Bankers Trust.
Settlement talks began between Bankers Trust and WMI. As the trial date neared and the talks intensified, on February 3, 2004, Bankers Trust finally gave defendants formal notice of the WMI action and made a formal request for indemnification under the DIP Agreement. That same letter advised defendants that the matter was scheduled for trial on March 15, 2004, that Bankers Trust was aggressively preparing for trial, and that WMI had made several settlement offers “which it ha[d] revised downward over time.” On February 22, WMI’s counsel advised the court that the action was settled. Bankers Trust sent a follow-up letter to defendants on February 26 (four days after it notified the court that the matter had been settled), notifying them that it was “contemplating” a settlement with WMI for $2.7 million, and requested that defendants contact it “if you wish to discuss this matter.” Defendants notified Bankers Trust on March 2 that they were taking the position that the WMI action did not involve them and that therefore they were under no indemnity obligation.
*47The WMI settlement agreement was signed by Bankers Trust and WMI on March 3, 2004 in the amount of $2.7 million. As part of the agreement, Bankers Trust obtained releases on behalf of the DIP lenders, including defendants. Bankers Trust argues that by accepting the benefit of the releases without objection, defendants approved the settlement. Defendants claim that they made it clear to Bankers Trust that they did not consent to the settlement or admit liability for WMI’s claims or Bankers Trust’s claim for indemnification.
On this appeal, defendants argue that the indemnification provision of the DIP Agreement was not triggered as a result of Bankers Trust’s failure to timely notify them of the WMI action or to tender defendants the opportunity to defend the action.
We addressed the issue of notice and tender in Feuer v Menkes Feuer, Inc. (8 AD2d 294 [1959]). We held that “an indemnitee is not required to give notice of claims against him to the indemnitor” in the absence of a “specific provision in the contract of indemnity” (at 298). However, if the indemnitee fails to notify the indemnitor, “in order to recover reimbursement, he must establish that he would have been liable” and that the amount paid in settlement was a reasonable amount and entered into in good faith (at 299).
While it is true that Bankers Trust did not give defendants formal notice of the WMI action until February 3, 2004, the indemnification agreement does not require such formal notice.
It is well established that unless otherwise specified in the contract, no particular form of notice is required for an indemnitee’s notice of claim to his indemnitor (see Prescott v Le Conte, 83 App Div 482, 487 [1903], affd 178 NY 585 [1904]; see also Combustion Eng’g, Inc. v Imetal, 235 F Supp 2d 265, 273 [2002]). Indeed, such notice need not even be in writing; it “may be implied from knowledge of the pendency of the action and participation in its defense” (23 NY Jur 2d, Contribution, Indemnity, and Subrogation § 107).
However, where an indemnitee does not give notice, it must meet the Feuer requirements of demonstrating that it would have been liable in the underlying action and that the ultimate settlement entered into was reasonable and made in good faith.
The record shows that, in May 2003, Bankers Trust’s counsel made defendants aware of the action when he sent defendants a second copy of the complaint. As the majority correctly points out, defendants were in fact aware of the litigation as early as *48May 2002. However, notification of the litigation did not come from Bankers Trust until May 2003, and it was incumbent upon Bankers Trust to provide notice of the action. From at least May 2003, defendants took an active role in the litigation, closely aligning themselves with Bankers Trust’s position in the litigation.
Defendants however, contend that, although they were made aware of the litigation, at no time before February 3, 2004 did Bankers Trust notify them that it intended to invoke the indemnification provisions of the DIP Agreement, nor did it tender the defense of the WMI action to them. They argue that any claimed notice preceding the letter of February 3 was not sufficient. Moreover, defendants point out that the February 3rd notice was given while Bankers Trust was already deeply involved in settlement negotiations that led to the February 22nd notification to the court that the matter had been settled.
The majority argues that since defendants had notice of the litigation, such notice, by whatever means obtained, is sufficient. However, the case law on this issue places the burden upon the indemnitee to notify the indemnitor of the litigation and that it seeks indemnification pursuant to the indemnification agreement between them. Here, there is a question whether Bankers Trust gave adequate notice of the impending settlement to defendants.
As the majority concedes, Bankers Trust first notified defendants of settlement negotiations by letter dated February 3, 2004. In that letter, for the first time, Bankers Trust invoked its indemnification rights. Although the letter stated that WMI had made several settlement offers, which were revised downward from time to time, and invited defendants to participate in the settlement discussions, defendants did not respond to the letter. What is missing from the letter is the fact that Bankers Trust was already deeply involved in settlement negotiations and was close to a settlement. Indeed, in a follow-up letter to defendants dated February 26, 2004, Bankers Trust advised that it was “contemplating” a settlement in the sum of $2.7 million. However, Bankers Trust had already notified the court, on February 22, 2004, that the matter had been settled.
By letter dated March 2, 2004, defendants took the position that the WMI action did not involve them and denied any indemnification obligation. This is quite a curious position coming from parties who were involved in this litigation and were aligned in interest with Bankers Trust. Be that as it may, two *49days later, Bankers Trust and WMI filed a stipulation of settlement.
There is no question that “[a]n indemnitee who fails to notify an indemnitor about an impending settlement proceeds at his own risk. In order to recover reimbursement, he must establish that there was liability, without a good defense, and that the amount of the settlement was reasonable” (Chase Manhattan Bank v 264 Water St. Assoc., 222 AD2d 229, 231 [1995], citing Feuer v Menkes Feuer, Inc., 8 AD2d 294 [1959]).
Thus, there is a question whether Bankers Trust’s notification to defendants of the settlement negotiations was sufficient to permit defendants to meaningfully participate therein. While Bankers Trust argues that defendants refused to participate in the settlement of the WMI action and are therefore estopped from challenging it, there is an issue as to when defendants were made aware of the proposed settlement or whether they were, in fact, presented with essentially a fait accompli, rather than a genuine opportunity to participate in the settlement negotiations. As a result, there is a question whether the notice of settlement negotiations given by Bankers Trust was timely made and in good faith. The determination of such issues, relying on questions of credibility, is not appropriately made on a summary judgment motion (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 315 [2004]).
On the question of Bankers Trust’s liability in the WMI action, it made no claim in its papers that it would have been liable in the underlying action. Its argument in the motion court and on appeal relies on the defense that the agent of a disclosed principal cannot be held liable for its actions taken as an agent (see News Am. Mktg., Inc. v Lepage Bakeries, Inc., 16 AD3d 146, 147 [2005]). Since the trial court in the WMI action determined that no motions for summary judgment would be entertained, Bankers Trust could not test its defense except at trial.
Defendants contend that the major portion of WMI’s claimed damages consisted of future profits which would have been speculative at best and therefore would not result in a jury verdict against Bankers Trust. In turn, Bankers Trust argues that the settlement of less than 2% of claimed damages is reasonable.
While defendants present no evidence to contradict the reasonableness of this settlement, the question of course turns on whether Bankers Trust was liable in the WMI action. As noted, this is an issue that must be determined at trial.
*50Based upon the conflicting claims on the issue of notice of settlement, and the evidence submitted by the parties in support of their respective positions, it is clear that an issue of fact exists as to the sufficiency of the notice of settlement given to defendants. Therefore, both motions for summary judgment on this issue should have been denied and the matter should be remanded for trial on the above-discussed issues.
Catterson, Renwick and Freedman, JJ., concur with Friedman, J.P.; Sweeny, J., dissents in a separate opinion.
Order, Supreme Court, New York County, reversed, on the law, with costs, defendants’ motion for summary judgment denied, and plaintiffs motion for summary judgment granted.