Congratulations to Paul M. Tarr and Harry Steinberg on their victory on behalf of Federated Department Stores, Inc. and Macy's East, Inc., in Goodman v. CF Galleria at White Plains, LLP. In Goodman the Appellate Division, Second Department, reversed an order denying Federated/Macy's motion for summary judgment and held that it was entitled to both contractual and common-law indemnity from mall owners in a personal injury action. Plaintiff claimed he tripped and fell over a concrete curb encasing shrubbery as he was walking towards Macy's entrance at the Galleria and sued both Federated/Macy's and the mall owners. Federated/Macy's claimed entitlement to contractual indemnity under the terms of its lease with the mall owners, asserting that the accident occurred in a common area of the mall, as defined by the lease, which Federated/Macy's had no duty to maintain, and also sought common-law indemnity based upon the mall owner being the sole party responsible for maintenance of the common area. The mall owners, in turn, claimed that since the accident happened near the entrance to Federated/Macy's store the area was not a common area. The mall owners also claimed that Federated Macy's had done some maintenance work in the area and asserted that they were, therefore, entitled to indemnity from Federated/Macy's. The Supreme Court denied both motions, finding questions of fact. The Appellate Division affirmed the denial of the mall owners' motion and reversed the denial of Federated/Macy's motion, holding that the terms of the lease were unambiguous, that the claimed accident occurred in what was plainly a "common area" under the lease, and that Federated/Macy's was therefore entitled to contractual indemnity. The Appellate Division also held that since there was no issue whether Federated/Macy's had a duty to maintain the area in which the Appellate Division Victory claimed accident occurred, it was also entitled to summary judgment on its claim for common-law indemnity.

Goodman v. CF Galleria at White Plains, LLP, --- N.Y.S.2d ----, 2007 WL 1086312 (2d Dept., April 10, 2007)