BRENNAN v. R.C. DOLNER, INC

Ordered that the order is affirmed insofar as appealed from, with costs.

The third-party defendant failed to demonstrate, prima facie, its entitlement to judgment as a matter of law with regard to the causes of action for contractual indemnification asserted in the third-party complaint ( see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Contrary to the third-party defendant's argument, absent a finding of negligence on the part of the third-party plaintiff, the prohibition against indemnifying a contractor for its own negligence in General Obligations Law § 5-322.1 is inapplicable ( see Brown v. Two Exch. Plaza Partners, 76 NY2d 172, 179). Here, no finding has yet been made with respect to the third-party plaintiff's fault, if any, in the happening of the accident. Thus, an award of summary judgment dismissing the causes of action for contractual indemnification would have been premature ( see Maxwell v. Toys "R" Us, 258 AD2d 630).

The third-party defendant's remaining contentions are without merit.