*1 SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department 1213

CA 11-01030

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, GREEN, AND GORSKI, JJ. DANA MESLER AND CYNTHIA MESLER,

PLAINTIFFS-RESPONDENTS,

V MEMORANDUM AND ORDER PODD LLC, DEVELOPERS DIVERSIFIED REALTY

CORPORATION, BG BCF, LLC, ET AL., DEFENDANTS,

AND JJK MANAGEMENT, INC., DEFENDANT-APPELLANT. ------------------------------------------------ DEVELOPERS DIVERSIFIED REALTY CORPORATION AND

BG BCF, LLC, THIRD-PARTY PLAINTIFFS-RESPONDENTS,

V

JJK MANAGEMENT, INC., THIRD-PARTY

DEFENDANT-APPELLANT.

(APPEAL NO. 2.)

LIPPMAN O’CONNOR, BUFFALO (GERARD E. O’CONNOR OF COUNSEL), FOR DEFENDANT-APPELLANT AND THIRD-PARTY DEFENDANT-APPELLANT.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (NELSON E. SCHULE, JR., OF COUNSEL), FOR THIRD-PARTY PLAINTIFFS-RESPONDENTS.

PAUL WILLIAM BELTZ, P.C., BUFFALO (DEBRA A. NORTON OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.

Appeal from an order of the Supreme Court, Erie County (Frank A.

Sedita, Jr., J.), entered May 26, 2010 in a personal injury action. The order granted the motion of defendants-third-party plaintiffs for a conditional order of indemnification against defendant-third-party defendant and denied the cross motion of defendant JJK Management, Inc. for summary judgment dismissing plaintiffs’ amended complaint against it.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the cross motion of defendant JJK Management, Inc. for summary judgment dismissing the amended complaint against it is granted, that part of the motion of defendants-third-party plaintiffs Developers Diversified Realty Corporation and BG BCF, LLC seeking a conditional order of indemnification in the alternative is denied, and the matter is remitted to Supreme Court, Erie County, to decide that part of the motion seeking compensatory damages in the alternative.

-2- 1213 CA 11-01030 Same Memorandum as in Mesler v Podd LLC ([appeal No. 1] ___ AD3d ___ [Nov. 18, 2011]).

Entered: November 18, 2011 Patricia L. Morgan

Clerk of the Court