Katherine Masi, et al., plaintiffs, v. 020 LLC

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

Katherine Masi, et al., plaintiffs, v. Kir Munsey Park 020 LLC, et al., respondents, et al., defendant, Whole Foods Market Group, Inc., doing business as Whole Foods Market, appellant.

2009-09840 (Index No. 22337/07)

Decided: August 03, 2010

JOSEPH COVELLO, J.P. DANIEL D. ANGIOLILLO RANDALL T. ENG JOHN M. LEVENTHAL, JJ. Callan, Koster, Brady & Brennan, LLP, New York, N.Y. (Kenneth S. Merber and Meredith F. McBride of counsel), for appellant. Perez & Varvaro, Uniondale, N.Y. (Denise A. Cariello of counsel), for respondents.

Argued-June 18, 2010

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant Whole Foods Market Group, Inc., doing business as Whole Foods Market, appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (McDonald, J.), dated June 19, 2009, as denied that branch of its motion which was for summary judgment on its cross claim against the defendants Kir Munsey Park 020 LLC, and Kimco Realty Corporation for contractual indemnification.

ORDERED that the order is affirmed insofar as appealed from, with costs, and, upon searching the record, summary judgment is awarded to the defendants Kir Munsey Park 020 LLC, and Kimco Realty Corporation dismissing the cross claim for contractual indemnification asserted against them by the defendant Whole Foods Market Group, Inc., doing business as Whole Foods Market.

The Supreme Court properly denied that branch of the motion of Whole Foods Market Group, Inc., doing business as Whole Foods Market (hereinafter Whole Foods), which was for summary judgment on its cross claim for contractual indemnification of an attorney's fee, since it did not make a prima facie showing of entitlement to judgment as a matter of law (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324).   The lease agreement between Whole Foods and the defendants Kir Munsey Park 020 LLC, and Kimco Realty Corporation (hereinafter together the respondents) contained no express indemnification provisions pertaining to personal injury actions filed by third parties, and no such indemnification clause could be implied from the language of that agreement (see Hooper Assoc. v. AGS Computers, 74 N.Y.2d 487, 491-492;  Schultz v Bridgeport & Port Jefferson Steamboat Co., 68 AD3d 970;  Sumba v. Clermont Park Assoc., LLC, 45 AD3d 671, 672).

Moreover, this Court has the authority to search the record and award summary judgment to a nonappealing party with respect to an issue that was the subject of the motion before the Supreme Court (see Dunham v. Hilco Constr.   Co., 89 N.Y.2d 425, 429-430).   Upon searching the record, we award summary judgment to the respondents dismissing the cross claim for contractual indemnification asserted against them by Whole Foods.

COVELLO, J.P., ANGIOLILLO, ENG and LEVENTHAL, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

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