Opinion
July 12, 1996
Appeal from the Supreme Court, Erie County, Michalek, J.
Present — Lawton, J.P., Fallon, Callahan, Doerr and Davis, JJ.
Order unanimously vacated without costs and third-party complaint dismissed. Memorandum: In Adamczyk v. Hillview Estates Dev. Corp. ( 226 A.D.2d 1049), we modified Supreme Court's order by granting defendant's motion for summary judgment dismissing the complaint. Because defendant was successful in the primary action, its third-party action seeking common-law indemnification, including attorney's fees, from third-party defendant must necessarily be dismissed ( see generally, Bay Ridge Air Rights v. State of New York, 44 N.Y.2d 49, 54-56; Satta v. City of New York, 272 App. Div. 782). We therefore vacate the order granting defendant's motion for summary judgment in the third-party action and dismiss the third-party complaint.