New York Supreme and/or Appellate Courts Appellate Division, First Department
March 7, 2013
EAST BOY, INC.,
EAST JAPANESE RESTAURANT, ET AL.,
Hernandez v East Boy, Inc.
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.
Decided on March 7, 2013
Andrias, J.P., Friedman, Acosta, Freedman, Clark, JJ.
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 AD2d 292 [1st Dept 1997]). In light of the unresolved issue of its negligence, defendant is not entitled to indemnification (see Delgiudice v Papanicolaou, 5 AD3d 236 [1st Dept 2004]; Tormey v City of New York, 302 AD2d 277, 278 [1st Dept 2003]).
We have considered defendant's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 7, 2013
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