Opinion
2011-11-3
Ana DiSTEFANO, Plaintiff,v.KMART CORPORATION INTERNATIONAL, Defendant–Appellant,770 Broadway Owner, LLC, Defendant,Thyssenkrupp Elevator Corporation, Defendant–Respondent.
Lynch Rowin LLP, New York (Karen L. Kirshenbaum of counsel), for appellant.*876 Babchik & Young LLP, White Plains (Bruce M. Young of counsel), for respondent.
Order, Supreme Court, New York County (Louis B. York, J.), entered on or about October 14, 2010, which, after a nonjury trial, dismissed defendant Kmart Corporation International's cross claim for contractual indemnification against defendant Thyssenkrupp Elevator Corporation (TEC), unanimously affirmed, with costs.
There is no conflict between New York and Michigan law on the issue presented. Thus, the dispute of which state's law should be applied need not be resolved by this Court ( see Matter of Allstate Ins. Co. [Stolarz–New Jersey Mfrs. Ins. Co.], 81 N.Y.2d 219, 225, 597 N.Y.S.2d 904, 613 N.E.2d 936 [1993]; Uygur v. Superior Walls of Hudson Val., Inc., 35 A.D.3d 447, 448, 826 N.Y.S.2d 154 [2006] ).
The court properly dismissed Kmart's cross claim for contractual indemnification. The indemnity provision of the parties' agreement was not triggered by plaintiff's claim because the evidence, which included, inter alia, Kmart's own expert witness and Department of Buildings records, showed that no malfunction of the subject elevator occurred and that plaintiff's negligence was the sole cause of her accident. Accordingly, plaintiff's accident did not “aris[e] out of [or] in connection with [TEC's] performance or failure of performance” of its work under the agreement ( see Dos Santos v. Power Auth. of State of N.Y., 85 A.D.3d 718, 721–722, 924 N.Y.S.2d 558 [2011]; Rosen v. New York City Tr. Auth., 295 A.D.2d 126, 742 N.Y.S.2d 825 [2002]; compare Margolin v. New York Life Ins. Co., 32 N.Y.2d 149, 344 N.Y.S.2d 336, 297 N.E.2d 80 [1973] ).
We have considered Kmart's remaining contentions and find them unavailing.
MAZZARELLI, J.P. SAXE, ACOSTA, DeGRASSE, MANZANET–DANIELS, JJ., concur.