        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1370
CA 11-01280
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ.


ROBERT V. WINSTEL, JR. AND CHRISTINE WINSTEL,
PLAINTIFFS,

                    V                             MEMORANDUM AND ORDER

ROMAR WNY PROPERTIES, LLC, DEFENDANT.
---------------------------------------------
ROMAR WNY PROPERTIES, LLC, THIRD-PARTY
PLAINTIFF-RESPONDENT,

                    V

ROMAR MECHANICAL SERVICES, HARLEM ROAD, INC.,
THIRD-PARTY DEFENDANT-APPELLANT.


KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (AMANDA L. MACHACEK OF
COUNSEL), FOR THIRD-PARTY DEFENDANT-APPELLANT.

SUGARMAN LAW FIRM, LLP, BUFFALO (MICHAEL A. RIEHLER OF COUNSEL),
BUFFALO, FOR THIRD-PARTY PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Frank A.
Sedita, Jr., J.), entered March 8, 2011 in a personal injury action.
The order, insofar as appealed from, denied the motion of third-party
defendant for summary judgment dismissing the third-party complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by Robert V. Winstel, Jr. (plaintiff) when he
slipped and fell on property owned by defendant-third-party plaintiff
(defendant) and leased to third-party defendant, plaintiff’s employer,
pursuant to a commercial lease that contained an indemnification
clause. Defendant thereafter commenced a third-party action seeking,
inter alia, contractual indemnification. Supreme Court properly
denied third-party defendant’s motion seeking summary judgment
dismissing the third-party complaint. Even assuming, arguendo, that
defendant ultimately is held to be free from negligence, which would
render the indemnification clause enforceable, we conclude that
third-party defendant failed to meet its initial burden on the motion
by establishing that the indemnification clause was not broad enough
to encompass the attorney’s fees and disbursements incurred by
defendant (cf. Boshnakov v Board of Educ. of Town of Eden, 302 AD2d
                                 -2-                         1370
                                                        CA 11-01280

857, 858-859; see generally Boyd v Bethlehem Steel Corp., 247 AD2d
864, lv dismissed in part and denied in part 92 NY2d 885; Blair v
County of Albany, 127 AD2d 950, 951).




Entered:   December 23, 2011                   Frances E. Cafarell
                                               Clerk of the Court
