| Bailey v Macy's E., Inc. |
| 2010 NY Slip Op 07874 [78 AD3d 624] |
| November 3, 2010 |
| Appellate Division, Second Department |
| Evelyn Bailey, Plaintiff, v Macy's East, Inc., et al., DefendantsThird-Party Plaintiffs-Appellants. Birger Christensen, Doing Business as BC International Group, Inc.,Third-Party Defendant-Respondent. |
—[*1] Morenus, Conway, Goren & Brandman, Melville, N.Y. (Frank R. Matozzo of counsel), forthird-party defendant-respondent.
In an action to recover damages for personal injuries, and a third-party action for a judgmentdeclaring, inter alia, that the third-party defendant is obligated to defend and indemnify thedefendants/third-party plaintiffs in the main action, the defendants/third-party plaintiffs appeal, as limitedby their brief, from so much of an order of the Supreme Court, Suffolk County (Pastoressa, J.), datedApril 27, 2009, as denied that branch of their motion which was for summary judgment declaring thatthe third-party defendant is obligated to defend and indemnify them in the main action, and granted thethird-party defendant's cross motion for summary judgment.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the crossmotion for summary judgment is denied, that branch of the motion of the defendants/third-party plaintiffswhich was for summary judgment declaring that the third-party defendant is obligated to defend andindemnify them in the main action is granted, and the matter is remitted to the Supreme Court, SuffolkCounty, for the entry of a judgment declaring that the third-party defendant is so obligated.
The third-party defendant, Birger Christensen, doing business as BC International Group, Inc.(hereinafter BCI), entered into a "Department License Agreement" with the defendants/third-partyplaintiffs Macy's East, Inc., and Federated Department Stores, Inc. (hereinafter together Macy's), tooperate a fur sales department within certain Macy's stores, including its store located at the SmithHaven Mall. Subsequently, the plaintiff, a BCI employee, allegedly was injured when she fell on awalkway leading from the employees' entrance of the Macy's store to the parking lot of the SmithHaven Mall. The plaintiff commenced this personal injury action against Macy's, and Macy's, in turn,commenced a third-party action against BCI. In the order appealed from, the Supreme Court, interalia, denied that branch of Macy's motion which was for summary judgment declaring that BCI wasobligated to defend and indemnify it in the main action, and granted BCI's cross motion for summaryjudgment. We reverse the order insofar as appealed from.
Macy's established its prima facie entitlement to judgment as a matter of law [*2]declaring that BCI is obligated to defend and indemnify it in the mainaction by submitting a copy of the parties' license agreement and excerpts from the plaintiff's depositiontestimony. Section 8.1 of the license agreement specifically requires BCI to indemnify Macy's from "anyclaims . . . arising or resulting from . . . injury to any of [BCI's]representatives." In addition, section 8.2 requires BCI to defend Macy's, upon request, in "any actionor proceeding as to which [Macy's] is entitled to indemnification from [BCI]." Moreover, although theplaintiff testified that she was injured as she was leaving work, her job necessarily required her to usethe walkway outside of the employees' entrance to reach and leave her workplace. Thus, contrary toBCI's contention, the underlying claim arose as a result of the operation of the fur sales department(see O'Connor v Serge El. Co., 58 NY2d 655 [1982]; Amato v Our Lady of Peace R.C.Church, 56 NY2d 999 [1982]; Daily News v OCS Sec., 280 AD2d 576, 577 [2001]).
In opposition to Macy's prima facie showing, BCI failed to raise a triable issue of fact (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, the Supreme Court shouldhave denied BCI's cross motion for summary judgment and granted that branch of Macy's motionwhich was for summary judgment declaring that BCI is obligated to defend and indemnify it in the mainaction.
BCI's remaining contentions are without merit.
Since the third-party action seeks declaratory relief, the matter must be remitted to the SupremeCourt, Suffolk County, for the entry of a judgment declaring that BCI is obligated to defend andindemnify Macy's in the main action (see Lanza v Wagner, 11 NY2d 317, 334[1962],appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]). Mastro, J.P.,Leventhal, Hall and Lott, JJ., concur.