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

1177
CA 16-00010
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.


BARBARA TULLY, ALSO KNOWN AS BARBARA BIELLE,
PLAINTIFF,

                    V                             MEMORANDUM AND ORDER

TRANSITOWN SOUTH ASSOCIATES, LLC, TRANSITOWN
PLAZA ASSOCIATES, LLC, GIAN PROPERTIES, LLC,
AND GIAN PROPERTIES LIMITED PARTNERSHIP,
DEFENDANTS.
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TRANSITOWN SOUTH ASSOCIATES, LLC, TRANSITOWN
PLAZA ASSOCIATES, LLC, GIAN PROPERTIES, LLC,
AND GIAN PROPERTIES LIMITED PARTNERSHIP,
THIRD-PARTY PLAINTIFFS-RESPONDENTS,

                    V

TIGER STRIPE, LLC, THIRD-PARTY DEFENDANT-APPELLANT.


KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (RICHARD T. SARAF OF
COUNSEL), FOR THIRD-PARTY DEFENDANT-APPELLANT.

SUGARMAN LAW FIRM, LLP, BUFFALO (MICHAEL RIEHLER OF COUNSEL), FOR
THIRD-PARTY PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Donna M.
Siwek, J.), entered October 8, 2015. The order, insofar as appealed
from, granted that part of the motion of defendants-third-party
plaintiffs seeking an order requiring third-party defendant to defend
and indemnify them and pay their attorneys’ fees.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, and that part of the
motion of defendants-third-party plaintiffs seeking an order requiring
third-party defendant to defend and indemnify them and pay their
attorneys’ fees is denied.

     Memorandum: Third-party defendant, Tiger Stripe, LLC (Tiger
Stripe), appeals from an order that, inter alia, granted in part the
motion of defendants-third-party plaintiffs (defendants) for summary
judgment and ordered Tiger Stripe to defend and indemnify defendants
and pay their attorneys’ fees. Tiger Stripe contends that defendants
failed to establish as a matter of law that they are entitled to
contractual indemnification. We agree. The snow-removal services
                                 -2-                          1177
                                                         CA 16-00010

contract required Tiger Stripe to indemnify defendants against claims
“arising out of or resulting from performance of services under [the]
Contract,” including claims attributable to bodily injury “caused in
whole or in part by acts or omissions” of Tiger Stripe. Inasmuch as
there are issues of fact concerning the alleged culpability of Tiger
Stripe, we conclude that Supreme Court erred in granting that part of
the motion (see Johnson v Wal-Mart, 125 AD3d 1468, 1469; Pieri v
Forest City Enters., 238 AD2d 911, 913).




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
