Opinion
Argued November 22, 1999
January 18, 2000
In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Alpert, J.), dated October 2, 1998, as denied its motion for summary judgment dismissing the complaint, or, in the alternative, for summary judgment against the third-party defendant, Agam Constructors, Inc., on its causes of action for contractual indemnification and to recover damages for breach of contract.
Garcia Stallone, Melville, N.Y. (Karl Zamurs of counsel), for defendant third-party plaintiff-appellant.
Levine Grossman, Mineola, N.Y. (Stacey Haskel and Scott Rubin of counsel), for plaintiffs-respondents.
Thurm Heller, LLP, New York, N.Y. (Roula Theofanis and Allison Snyder of counsel), for third-party defendant-respondent.
FRED T. SANTUCCI, J.P., DANIEL W. JOY, GLORIA GOLDSTEIN and SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendant claims that it is entitled to summary judgment on its contractual indemnity claim. We disagree. The determination as to the applicability of the indemnification clause in the subject subcontract cannot be made until there is a finding and apportionment of liability between the appellant, the general contractor, and the third-party defendant, the subcontractor (see,Haddock v. Fordham Commercial Redevelopment Corp., 247 A.D.2d 327 ). Since there has been no finding made with respect to the parties' respective fault, if any, for the underlying injury, any award of summary judgment at this juncture would be premature (see, Maxwell v. Toys "R" Us, 258 A.D.2d 630 ).
The defendant's remaining contentions are without merit.
SANTUCCI, J.P., JOY, GOLDSTEIN, and FEUERSTEIN, JJ., concur.