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GARY CHUN, et al., plaintiffs-respondents, v. ECCO III ENTERPRISES, INC., defendant third-party plaintiff-appellant; AGAM CONSTRUCTORS, INC., third-party defendant-respondent (and a second third-party action).

DECISION ORDER

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

The defendant claims that it is entitled to summary judgment on its contractual indemnity claim. We disagree. The determination as to the applicability of the indemnification clause in the subject subcontract cannot be made until there is a finding and apportionment of liability between the appellant, the general contractor, and the third-party defendant, the subcontractor (see,Haddock v. Fordham Commercial Redevelopment Corp., 247 A.D.2d 327 ). Since there has been no finding made with respect to the parties' respective fault, if any, for the underlying injury, any award of summary judgment at this juncture would be premature (see, Maxwell v. Toys "R" Us, 258 A.D.2d 630 ).

The defendant's remaining contentions are without merit.

SANTUCCI, J.P., JOY, GOLDSTEIN, and FEUERSTEIN, JJ., concur.

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CHUN v. ECCO III ENTERPRISES, INC
(Jan 18, 2000)