McALLISTER v. CONSTRUCTION CONSULTANTS L.I

Ordered that the order is reversed, on the law, with costs, and the motion of the defendant/third-party plaintiff for conditional summary judgment on its third-party cause of action for contractual indemnification is denied as premature.

"[A] party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor" ( Cava Constr. Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660, 662, citing General Obligations Law § 5-322.1; see Reynolds v County of Westchester, 270 AD2d 473). Here, the Supreme Court erred in granting the motion of the defendant/third-party plaintiff which was for conditional summary judgment on its third-party cause of action for contractual indemnification, as there are issues of fact as to whose negligence, if any, caused the plaintiffs accident ( see Erickson v Cross Ready Mix, Inc., 75 AD3d 519, 524; George v Marshalls of MA, Inc., 61 AD3d 925, 930; Chun v Ecco III Enters., 268 AD2d 454, 454-455). Under these circumstances, it was premature to reach the issue of contractual indemnification ( see Erickson v Cross Ready Mix, Inc., 75 AD3d at 524; George v Marshalls of MA, Inc., 61 AD3d at 930; Chun v Ecco III Enters., 268 AD2d at 454-455).

The third-party defendant's remaining contention is not properly before this Court.