| Masi v Kir Munsey Park 020 LLC |
| 2010 NY Slip Op 06296 [76 AD3d 514] |
| August 3, 2010 |
| Appellate Division, Second Department |
| Katherine Masi et al., Plaintiffs, v Kir Munsey Park 020LLC et al., Respondents, and Whole Foods Market Group, Inc., Doing Business as Whole FoodsMarket, Appellant, et al., Defendant. |
—[*1] Perez & Varvaro, Uniondale, N.Y. (Denise A. Cariello of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant Whole FoodsMarket Group, Inc., doing business as Whole Foods Market, appeals, as limited by its brief, fromso 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 againstthe defendants Kir Munsey Park 020 LLC, and Kimco Realty Corporation for contractualindemnification.
Ordered that the order is affirmed insofar as appealed from, with costs, and, upon searchingthe record, summary judgment is awarded to the defendants Kir Munsey Park 020 LLC, andKimco Realty Corporation dismissing the cross claim for contractual indemnification assertedagainst them by the defendant Whole Foods Market Group, Inc., doing business as Whole FoodsMarket.
The Supreme Court properly denied that branch of the motion of Whole Foods MarketGroup, Inc., doing business as Whole Foods Market (hereinafter Whole Foods), which was forsummary judgment on its cross claim for contractual indemnification of an attorney's fee, since itdid not make a prima facie showing of entitlement to judgment as a matter of law (seegenerally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The lease agreementbetween Whole Foods and the defendants Kir Munsey Park 020 LLC, and Kimco RealtyCorporation (hereinafter together the respondents) contained no express indemnificationprovisions pertaining to personal injury actions filed by third parties, and no suchindemnification clause could be implied from the language of that agreement (see HooperAssoc. v AGS Computers, 74 NY2d 487, 491-492 [1989]; Schultz v Bridgeport & Port JeffersonSteamboat Co., 68 AD3d 970 [2009]; Sumba v Clermont Park Assoc., LLC, 45 AD3d 671, 672 [2007]).
Moreover, this Court has the authority to search the record and award summary [*2]judgment to a nonappealing party with respect to an issue that wasthe subject of the motion before the Supreme Court (see Dunham v Hilco Constr. Co., 89NY2d 425, 429-430 [1996]). Upon searching the record, we award summary judgment to therespondents dismissing the cross claim for contractual indemnification asserted against them byWhole Foods. Covello, J.P., Angiolillo, Eng and Leventhal, JJ., concur.