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Dana Mesler and Cynthia Mesler, Plaintiffs-Respondents v. Podd LLC

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


November 18, 2011

DANA MESLER AND CYNTHIA MESLER, PLAINTIFFS-RESPONDENTS,
v.
PODD LLC, DEVELOPERS DIVERSIFIED REALTY CORPORATION, BG BCF, LLC, ET AL., DEFENDANTS, AND
JJK MANAGEMENT, INC.,
DEFENDANT-APPELLANT. DEVELOPERS DIVERSIFIED REALTY CORPORATION AND BG BCF, LLC,
THIRD-PARTY PLAINTIFFS-RESPONDENTS,
v.
JJK MANAGEMENT, INC.,
THIRD-PARTY DEFENDANT-APPELLANT.

Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), entered May 26, 2010 in a personal injury action.

Mesler v PODD LLC

Decided on November 18, 2011

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, GREEN, AND GORSKI, JJ.

(APPEAL NO. 2.)

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 ([appeal No. 1] ___ AD3d ___ [Nov. 18, 2011]).

Entered: November 18, 2011

Patricia L. Morgan Clerk of the Court

20111118

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