Novack Burnbaum Crystal LLP, New York (Howard C. Crystal of counsel), for appellant.
Matalon Shweky Elman PLLC, New York (Yosef Rothstein of counsel), for respondent.
Order, Supreme Court, New York County (Anil C. Singh, J.), entered August 3, 2015, which, insofar as appealed from, denied defendant Live Auctioneers, LLC's motion for summary judgment dismissing the claims for breach of contract, negligence, and gross negligence and on its counterclaim for contractual indemnification, and granted plaintiff's cross motion to dismiss the counterclaim for contractual indemnification, unanimously modified, on the law, to grant defendant's motion, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.
Defendant established prima facie that its conduct was not grossly negligent and that it was therefore entitled to enforce the contractual limitations on liability contained in its “Terms & Conditions Acknowledgement [sic] Form” (see Colnaghi, U.S.A., Ltd. v. Jewelers Protection Servs., Ltd., 81 N.Y.2d 821, 595 N.Y.S.2d 381, 611 N.E.2d 282 [1993] ). In opposition, plaintiff failed to submit evidence that supported its allegation that defendant knowingly and intentionally created confusion on its website. The evidence shows, at most, ordinary negligence on defendant's part (see Lubell v. Samson Moving & Stor., 307 A.D.2d 215, 763 N.Y.S.2d 30 [1st Dept.2003] ).
Defendant's counterclaim for contractual indemnification was correctly dismissed since the indemnification provision does not demonstrate unmistakably that the parties intended the loser in litigation between them to indemnify the winner for legal fees (see Hooper Assoc. v. AGS Computers, 74 N.Y.2d 487, 491–492, 549 N.Y.S.2d 365, 548 N.E.2d 903 [1989] ; Gotham Partners, L.P. v. High Riv.
Ltd. Partnership, 76 A.D.3d 203, 906 N.Y.S.2d 205 [1st Dept.2010], lv. denied 17 N.Y.3d 713, 2011 WL 4977339 [2011] ).
FRIEDMAN, J.P., SWEENY, SAXE, KAPNICK, GESMER, JJ., concur.