Opinion
December 27, 1993
Appeal from the Supreme Court, Nassau County (Roberto, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and those claims asserted against the third-party defendant Arkay Heating Air Conditioning Co., Inc., which are based upon a theory of contractual indemnification are dismissed.
A review of the complaints of the third-party plaintiffs and of the cross-claims of the third-party codefendant De-Con Mechanical, Inc., indicate that they each state a valid cause of action for contractual indemnification (see, Stukuls v State of New York, 42 N.Y.2d 272, 275; Rovello v Orofino Realty Co., 40 N.Y.2d 633). However, to the extent that the parties have treated this motion as one for summary judgment, we find that upon no reading of the "purchase order" agreement is there a basis for finding contractual indemnification against the third-party defendant Arkay Heating Air Conditioning Co., Inc. Accordingly, the contractual indemnification claims against the third-party defendant Arkay are dismissed. Mangano, P.J., Rosenblatt, Lawrence and Joy, JJ., concur.