Opinion
2013-03-7
Adelo HERNANDEZ, Plaintiff–Respondent, 590284/11 v. EAST BOY, INC., Defendant/Third–Party Plaintiff–Appellant, v. East Japanese Restaurant, et al., Third–Party Defendants–Respondents.
Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), for appellant. James M. Sheridan, Jr., Garden City, for Adelo Hernandez, respondent.
Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), for appellant. James M. Sheridan, Jr., Garden City, for Adelo Hernandez, respondent.
Law Offices of Michael E. Pressman, New York (Stuart Chotewa of counsel), for East Japanese Restaurant, H. Yachi, Inc. and Yachi Enterprizes, respondents.
Order, Supreme Court, New York County (Louis B. York, J.), entered August 10, 2012, which denied defendant/third-party plaintiff's motion for summary judgment dismissing the complaint and on its claim for indemnification against third-party defendants, unanimously affirmed, without costs.
Conflicting testimony raises an issue of fact whether, despite the terms of the lease, defendant retained or assumed responsibility for maintaining the premises and can be held liable for plaintiff's injuries ( see Colon v. Mandelbaum, 244 A.D.2d 292, 664 N.Y.S.2d 302 [1st Dept. 1997] ). In light of the unresolved issue of its negligence, defendant is not entitled to indemnification ( see Delgiudice v. Papanicolaou, 5 A.D.3d 236, 773 N.Y.S.2d 282 [1st Dept. 2004];Tormey v. City of New York, 302 A.D.2d 277, 278, 756 N.Y.S.2d 159 [1st Dept. 2003] ).
We have considered defendant's remaining arguments and find them unavailing.