Opinion
02-13-2015
Latasha JOHNSON, Plaintiff–Respondent, v. WAL–MART, BG Thruway, LLC, Developers Diversified Realty Corporation, Defendants–Appellants, Eagle Ridge Specialty Property Services, Inc., and James Barone, Defendants–Respondents.
Kenney Shelton Liptak Nowak LLP, Buffalo (Amanda L. Machacek of Counsel), for Defendants–Appellants. Amigone, Sanchez & Mattrey, LLP, Buffalo (Richard S. Juda, Jr., of Counsel), for Defendants–Respondents.
Kenney Shelton Liptak Nowak LLP, Buffalo (Amanda L. Machacek of Counsel), for Defendants–Appellants.
Amigone, Sanchez & Mattrey, LLP, Buffalo (Richard S. Juda, Jr., of Counsel), for Defendants–Respondents.
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, and DeJOSEPH, JJ.
Opinion
MEMORANDUM:During the pendency of this appeal, the parties entered into a partial stipulation of discontinuance that effectively narrowed the issue on appeal to whether defendants Wal–Mart, BG Thruway, LLC, and Developers Diversified Realty Corporation (collectively, premises defendants) were entitled to indemnification from defendant Eagle Ridge Specialty Property Services, Inc. (Eagle Ridge) under their snow-removal services contract. We conclude that Supreme Court properly denied that part of the premises defendants' motion seeking summary judgment on their cross claim for contractual indemnification. The snow-removal services contract required Eagle Ridge to indemnify the premises defendants based on any negligent or intentional act or omission, and there is an issue of fact concerning the alleged culpability of Eagle Ridge (see Walter v. United Parcel Serv., Inc., 56 A.D.3d 1187, 1188, 867 N.Y.S.2d 805 ; Anderson v. Jefferson–Utica Group, Inc., 26 A.D.3d 760, 761, 809 N.Y.S.2d 693 ; Torella v. Benderson Dev. Co., 307 A.D.2d 727, 729, 763 N.Y.S.2d 876 ).
Now, upon reading and filing the stipulation of discontinuance signed by the attorneys for the parties on October 1, 2014,
It is hereby ORDERED that said appeal by defendants Wal–Mart, BG Thruway, LLC, and Developers Diversified Realty Corporation insofar as it concerns plaintiff's direct claims is unanimously dismissed upon stipulation and the order is affirmed without costs.