Opinion
January 14, 1977
Appeal from the Erie Supreme Court.
Present — Marsh, P.J., Cardamone, Simons, Dillon and Witmer, JJ.
Order and judgment unanimously affirmed, with costs. Memorandum: Defendant and third-party defendants entered into an agreement whereby defendant would remove certain underground pipe at a fixed price per foot. Defendant thereafter entered into a written contract with plaintiff whereby plaintiff would remove and stockpile the same underground pipe at a fixed, but lesser, price per foot. The latter contract contains no reference to the former. In this action, plaintiff brings suit against defendant for moneys due and owing on their contract. In defendant's third-party action, the third-party defendants interposed a counterclaim alleging that large quantities of the pipe were damaged in removal. No such claim is alleged by defendant in plaintiff's action against it. Plaintiff was granted summary judgment at Special Term, and defendant appeals. Defendant has failed to raise any triable issue of fact in its answer or in its reply affidavit on the motion for summary judgment. While the propriety of defendant's third-party action is not at issue here, that suit depends upon a contract which is separate and independent from the claim in plaintiff's action (see Cleveland v Farber, 46 A.D.2d 733). Plaintiff had no contract with the third-party defendants and would have had no legal basis upon which to assert a cause of action against them. Defendant's third-party action is not founded upon an indemnity agreement, nor is plaintiff's claim such as to give rise to an apportionment of liability between defendant and the third-party defendants (see 2 Weinstein-Korn-Miller, N Y Civ Prac, par 1007.02). The third-party action has its own contractual basis and is not premised upon any liability of the third-party defendants for all or part of plaintiff's claim against defendant (see CPLR 1007; Horn v Ketchum, 27 A.D.2d 759). Thus the defendant, having failed to assert any claim or counterclaim against plaintiff, cannot rely upon the allegations of the counterclaim of the third-party defendants to frustrate plaintiff's motion for summary judgment.