Opinion
May 27, 1997
Appeal from the Supreme Court, Kings County (Vaccaro, J.).
Ordered that the appeal from the order dated April 15, 1996, is dismissed, as that order was superseded by the order dated July 10, 1996, made upon reargument; and it is further,
Ordered that the order dated July 10, 1996, is affirmed insofar as appealed from; and it is further,
Ordered that the fourth-party plaintiff is awarded one bill of costs.
Contrary to the appellant's contention, the "master agreement" between the appellant and the fourth-party plaintiff-respondent was properly considered by the Supreme Court. The fact that the copy of that agreement in the record was not signed by the appellant is irrelevant, since the Statute of Frauds is not in issue here ( cf., Janina Travel Bur. v. Kalison, 72 A.D.2d 916).
The Supreme Court held that only contribution lay here. Although no appeal was taken by the fourth-party plaintiff, the propriety of that ruling may be considered to justify affirmance of the order appealed from ( see, Parochial Bus Sys. v. Board of Educ., 60 N.Y.2d 539, 545).
We conclude that pursuant to the master agreement, the appellant could be held liable to the fourth-party plaintiff for both contribution and indemnification ( see, Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 568; Rogers v. Dorchester Assoc., 32 N.Y.2d 553). However, there are numerous questions of fact which preclude the granting of summary judgment ( see, Kdidnasky v. Cali Bldg. Co., 130 A.D.2d 817).
Accordingly, we uphold the determination of the Supreme Court.
O'Brien, J.P., Goldstein, McGinity and Luciano, JJ., concur.