White v. 92nd Realty Co. , 728 N.Y.S.2d 396 ( 2001 )

—In an action to recover damages for personal injuries and a third-party action for contractual indemnification, the third-party defendant Town Masonry Corp. appeals from an order and judgment (one paper), of the Supreme Court, Queens County (Golia, J.), entered June 29, 2000, which, inter alia, granted the motion of the defendant third-party plaintiff 92nd Realty Co. for partial summary judgment against it on the third-party complaint for “any liability that may be imposed upon, or judgment that may be entered against, 92nd Realty in this action” including an award of an attorney’s fee and expenses.

Ordered that the order and judgment is reversed, on the law, with costs, and the motion is denied.

There is no proof in the record that the defendant third-party plaintiff 92nd Realty Co. was free from negligence in the incident which allegedly resulted in injuries to the plaintiff. Accordingly, the determination that 92nd Realty Co. may recover under the contractual indemnification provision of its contract with the third-party defendant Town Masonry Corp. is premature (see, McGill v Polytechnic Univ., 235 AD2d 400, 402; General Obligations Law § 5-322.1; but see, Santamaria v 1125 Park Ave. Corp., 238 AD2d 259). Goldstein, J. P., McGinity, Luciano and Crane, JJ., concur.