BRANHAM v. LOEWS ORPHEUM THEATRE INC (2002)

Supreme Court, Appellate Division, First Department, New York.

Lottie BRANHAM, Plaintiff-Appellant, v. LOEWS ORPHEUM THEATRE, INC., et al., Defendants-Respondents.

Decided: February 28, 2002

WILLIAMS, J.P., LERNER, BUCKLEY, FRIEDMAN and MARLOW, JJ.

Barry Siskin, for Plaintiff-Appellant. John R. Frank, for Defendants-Respondents.

Order, Supreme Court, New York County (Edward Lehner, J.), entered August 27, 2001, which, in an action against the owners and tenant of premises in which plaintiff allegedly sustained personal injuries, marked the action off the calendar due to the bankruptcy of the tenant, unanimously affirmed, without costs.

The motion court properly refused to entertain proceedings against the owners in view of the tenant/bankrupt's apparently undisputed obligation to indemnify the owners for any liability they sustain in this action. While the bankruptcy filing by one defendant does not prevent a plaintiff from proceeding on causes of action against the non-bankrupt defendants, an exception is recognized where, as here, the bankrupt is obligated to indemnify a non-bankrupt defendant (Robins Co. v. Piccinin, 788 F.2d 994, 999, cert. denied 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177; cf., Central Buffalo Project Corp. v. Edison Bros. Stores., 205 A.D.2d 295, 619 N.Y.S.2d 890).

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