         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
