Ezzard v. One East River Place Realty Co.

— Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered April 16, 2010, which, insofar as appealed from as limited by the briefs, denied that part of the motion of defendants-appellants for an order directing defendant New York Elevator & Electrical Corp. (NYE) to assume their defense against the claims brought by plaintiff, unanimously affirmed, with costs.

The motion was properly denied in this action where plaintiff was allegedly injured when she tripped and fell while exiting an elevator car. Because there has been no showing that NYE was negligent or that appellants were not negligent, any order requiring NYE to defend is premature (see Inner City Redevelopment Corp. v Thyssenkrupp El. Corp., 78 AD3d 613 [1st Dept 2010]; see also Bellefleur v Newark Beth Israel Med. Ctr., 66 AD3d 807, 809 [2009]). Concur — Tom, J.P., Mazzarelli, Friedman, Renwick and DeGrasse, JJ.