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

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

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 NO. 2.)

CA 11–01030

Decided: November 18, 2011

PRESENT:  CENTRA, J.P., FAHEY, PERADOTTO, GREEN, AND GORSKI, JJ. LIPPMAN O'CONNOR, BUFFALO (GERARD E. O'CONNOR OF COUNSEL), FOR DEFENDANT–APPELLANT AND THIRD–PARTY DEFENDANT–APPELLANT. KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (NELSON E. SCHULE, JR., OF COUNSEL), FOR THIRD–PARTY PLAINTIFFS–RESPONDENTS. PAUL WILLIAM BELTZ, P.C., BUFFALO (DEBRA A. NORTON OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.

MEMORANDUM AND ORDER

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] ).

Patricia L. Morgan

Clerk of the Court