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Evans-Smith v. Wilmorite

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 27, 2009
60 A.D.3d 1484 (N.Y. App. Div. 2009)

Opinion

No. CA 08-02158.

March 27, 2009.

Appeal from an order of the Supreme Court, Ontario County (William F. Kocher, A.J.), entered August 20, 2008 in a personal injury action. The order denied the motion of defendant May Department Stores Company, incorrectly sued as Kaufmann's Carousel, Inc. and May Department Stores International, Inc., for summary judgment on its contractual indemnification cross claim against defendants Wilmorite, Inc. and Eastview Mall Holdings, LLC.

GIBSON, McASKILL CROSBY, LLP, BUFFALO (VICTOR ALAN OLIVERI OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

UNDERBERG KESSLER LLP, CANANDAIGUA (MARGARET E. SOMERSET OF COUNSEL), FOR Plaintiff's-RESPONDENTS.

GOLDBERG SEGALLA LLP, ROCHESTER (MELANIE S. WOLK OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

Present: Scudder, P.J., Smith, Peradotto, Carni and Green, JJ.


It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs and the motion is granted.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Jo-Ann Evans-Smith (plaintiff) when she slipped and fell on an icy sidewalk outside an entrance to Kaufmann's Department Store at Eastview Mall. Supreme Court erred in denying the motion of defendant May Department Stores Company, incorrectly sued as Kaufmann's Carousel, Inc. and May Department Stores International, Inc. (hereafter, Kaufmann's) seeking summary judgment on its cross claim for contractual indemnification against defendants Wilmorite, Inc. and Eastview Mall Holdings, LLC (hereafter, Wilmorite). Kaufmann's met its initial burden of establishing its entitlement to judgment under the terms of the third amended and restated construction, operation and reciprocal easement agreement (Third REA). The indemnification provision in the Third REA requires Wilmorite to indemnify Kaufmann's for, inter alia, liability for bodily injury arising out of accidents occurring on any part of the "common facilities," including sidewalks. The Third REA further provides that Wilmorite is obligated to maintain the common facilities and, pursuant to that obligation, it agreed that "all sidewalks shall be kept reasonably free of snow [and] ice." Thus, based upon the terms of the Third REA, Kaufmann's is entitled to contractual indemnification from Wilmorite ( see Goodman v CF Galleria at White Plains, LP, 39 AD3d 588, 590). Evidence that Kaufmann's performed snow and ice removal in the area of plaintiff's fall does not raise an issue of fact with respect "to any potential active negligence of [Kaufmann's] which was a proximate cause of the incident in question" ( id.). Nor does that evidence raise an issue of fact with respect to the maintenance obligation of Wilmorite under the Third REA, particularly "in light of the no-waiver provision contained in the agreement" ( id.).


Summaries of

Evans-Smith v. Wilmorite

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 27, 2009
60 A.D.3d 1484 (N.Y. App. Div. 2009)
Case details for

Evans-Smith v. Wilmorite

Case Details

Full title:JO-ANN EVANS-SMITH et al., Respondents, v. WILMORITE, INC., et al.…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Mar 27, 2009

Citations

60 A.D.3d 1484 (N.Y. App. Div. 2009)
2009 N.Y. Slip Op. 2430
876 N.Y.S.2d 599