Roddy v Nederlander Producing Co. of Am., Inc.

Roddy v Nederlander Producing Co. of Am., Inc. 2012 NY Slip Op 01783 Decided on March 13, 2012 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 March 13, 2012
Tom, J.P., Saxe, Acosta, DeGrasse, Román, JJ.
7089 113659/02

[*1]Pat Roddy, Plaintiff,

v

Nederlander Producing Company of America, Inc., et al., Defendants-Appellants, Abhann Productions, Inc., et al., Defendants. The Gershwin Theatre, Third-Party Plaintiff, Abhann Productions, Inc., Third-Party Defendant-Respondent.




Law Offices of Charles J. Siegel, New York (Robert S. Cypher,
Jr. of counsel), for appellants.
Mischel & Horn, P.C., New York (Scott T. Horn of counsel),
for respondent.

Order, Supreme Court, New York County (Louis B. York, J.), entered September 30, 2011, which denied defendants Nederlander Producing Company of America, Inc. and the Gershwin Theatre's motion to require former defendant Abhann Productions, Inc. to indemnify Nederlander, unanimously affirmed, with costs.

Defense counsel admitted in prior motion papers that Nederlander could not assert a cross claim for contractual indemnification because it was not an indemnitee named in the license agreement for use of the theater. Moreover, Nederlander has not shown that it ever pleaded a cause of action for contractual indemnification against Abhann, and its motion, brought after years of litigation, is unsupported by any evidence in the record and prejudices plaintiff's interest in the resolution of his claims (see Kramer v Danalis, 49 AD3d 263 [2008]). The motion court correctly concluded that this court did not award Nederlander indemnification against Abhann in a prior appeal in which we granted Gershwin's motion for summary judgment on its contractual [*2]indemnification claim against Abhann (see 44 AD3d 556 [2007]).

We have considered defendants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 13, 2012

CLERK