DiStefano v Kmart Corp. Intl.

DiStefano v Kmart Corp. Intl. 2011 NY Slip Op 07724 Decided on November 3, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 3, 2011
Mazzarelli, J.P. Saxe, Acosta, DeGrasse, Manzanet-Daniels, JJ.
5928 101657/08

[*1]Ana DiStefano, Plaintiff,

v

Kmart Corporation International, Defendant-Appellant, 770 Broadway Owner, LLC, Defendant, Thyssenkrupp Elevator Corporation, Defendant-Respondent.




Lynch Rowin LLP, New York (Karen L. Kirshenbaum of
counsel), for appellant.
Babchik & Young LLP, White Plains (Bruce M. Young of
counsel), for respondent.

Order, Supreme Court, New York County (Louis B. York, J.), entered on or about October 14, 2010, which, after a nonjury trial, dismissed defendant Kmart Corporation International's cross claim for contractual indemnification against defendant Thyssenkrupp Elevator Corporation (TEC), unanimously affirmed, with costs.

There is no conflict between New York and Michigan law on the issue presented. Thus, the dispute of which state's law
should be applied need not be resolved by this Court (see Matter of Allstate Ins. Co. [Stolarz-New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 225 [1993]; Uygur v Superior Walls of Hudson Val., Inc., 35 AD3d 447, 448 [2006]).

The court properly dismissed Kmart's cross claim for contractual indemnification. The indemnity provision of the parties' agreement was not triggered by plaintiff's claim because the evidence, which included, inter alia, Kmart's own expert witness and Department of Buildings records, showed that no malfunction of the subject elevator occurred and that plaintiff's negligence was the sole cause of her accident. Accordingly, plaintiff's accident did not "aris[e] out of [or] in connection with [TEC's] performance or failure of performance" of its work under the agreement (see Dos Santos v Port Auth. of State of N.Y., 85 AD3d 718, 721-722 [2011]; Rosen v New York City Tr. Auth., 295 AD2d 126 [2002]; compare Margolin v New York Life Ins. Co., 32 NY2d 149 [1973]).

We have considered Kmart's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. [*2]

ENTERED: NOVEMBER 3, 2011

CLERK