Carey v. Walt Whitman Mall, LLC

• Decision Date: 05 April 2023
• Docket Number: 2021-01488,Index No. 600207/18
• Parties: Giovanna Carey, appellant-respondent, v. Walt Whitman Mall, LLC, et al., respondents-appellants, ABB Restaurant Group, Inc., etc., respondent.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 01773

Giovanna Carey, appellant-respondent,
v.
Walt Whitman Mall, LLC, et al., respondents-appellants,

ABB Restaurant Group, Inc., etc., respondent.

No. 2021-01488, Index No. 600207/18

Supreme Court of New York, Second Department

April 5, 2023

Feldman, Kramer & Monaco, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Gregory Freedman], of counsel), for appellant-respondent.

Ahmuty, Demers & McManus, Albertson, NY (Glenn A. Kaminska and Nicholas M. Vevante of counsel), for respondents-appellants.

Marshall Dennehey Warner Coleman & Goggin, P.C., Melville, NY (Christopher J. Power of counsel), for respondent.

ANGELA G. IANNACCI, J.P. CHERYL E. CHAMBERS JOSEPH J. MALTESE, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, and the defendants Walt Whitman Mall, LLC, and Saks Fifth Avenue, LLC, cross-appeal, from an order of the Supreme Court, Suffolk County (Joseph Farneti, J.), dated January 26, 2021. The order, insofar as appealed from, granted that branch of the motion of the defendant ABB Restaurant Group, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it. The order, insofar as cross-appealed from, denied those branches of the motion of the defendants Walt Whitman Mall, LLC, and Saks Fifth Avenue, LLC, which were for summary judgment dismissing the complaint and all cross-claims insofar as asserted against them and on their cross-claim for contractual indemnification.

ORDERED that the order is reversed insofar as appealed from, on the law, and that branch of the motion of the defendant ABB Restaurant Group, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it is denied; and it is further, ORDERED that the order is affirmed insofar as cross-appealed from; and it is further, ORDERED that one bill of costs is awarded to the plaintiff payable by the defendant ABB Restaurant Group, Inc.

The plaintiff was allegedly injured when she slipped and fell in a restaurant operated by the defendant ABB Restaurant Group, Inc. (hereinafter ABB). The restaurant was located within premises allegedly leased to the defendant Saks Fifth Avenue, LLC (hereinafter Saks Fifth, LLC), by the defendant Walt Whitman Mall, LLC (hereinafter WWM). ABB operated the restaurant in that space pursuant to a food services agreement with nonparty Saks & Company, LLC.

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