Mesler v PODD LLC
2011 NY Slip Op 08426 [89 AD3d 1538]
November 18, 2011
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, January 4th, 2012


Dana Mesler et al., Respondents,
v
PODD LLC et al., Defendants, and JJK Management, Inc., Appellant. Developers Diversified Realty Corporation et al., Third-Party Plaintiffs-Respondents, v JJK Management, Inc., Third-Party Defendant-Appellant. (Appeal No. 2.)

—[*1] Lippman O'Connor, Buffalo (Gerard E. O'Connor of counsel), for defendant-appellant and third-party defendant-appellant.

Kenney Shelton Liptak Nowak LLP, Buffalo (Nelson E. Schule, Jr., of counsel), for third-party plaintiffs-respondents.

Paul William Beltz, P.C., Buffalo (Debra A. Norton of counsel), for plaintiffs-respondents.

Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), entered May 26, 2010 in a personal injury action. The order granted the motion of defendants-third-party plaintiffs for a conditional order of indemnification against defendant-third-party defendant and denied the cross motion of defendant JJK Management, Inc. for summary judgment dismissing plaintiffs' amended complaint against it.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the cross motion of defendant JJK Management, Inc. for summary judgment dismissing the amended complaint against it is granted, that part of the motion of defendants-third-party plaintiffs Developers Diversified Realty Corporation and BG BCF, LLC seeking a conditional order of indemnification in the alternative is denied, and the matter is remitted to Supreme Court, Erie County, to decide that part of the motion seeking compensatory damages in the alternative.

Same memorandum as in Mesler v Podd LLC (89 AD3d 1533 [[*2]2011]). Present—Centra, J.P., Fahey, Peradotto, Green and Gorski, JJ.