Ordered that the order is reversed, with costs, and the motion for summary judgment is denied.
The parties' indemnification agreement is, on its face, violative of General Obligations Law § 5-322.1 Gen. Oblig., since it impermissibly requires, inter alia, that James A. Smith Contracting, Inc. (hereinafter Smith), indemnify Toys "R" Us for liability arising from acts of negligence of Toys "R" Us ( see, Itri Brick Concrete Corp. v. Aetna Cas. Sur. Co., 89 N.Y.2d 786, 789; Quain v. Buzzetta Constr. Corp., 69 N.Y.2d 376). Accordingly, the court erred in granting the motion of Toys "R" Us for summary judgment on its cross claim for contractual indemnification. Furthermore, no finding has yet been made with respect to the parties' respective fault, if any, for the underlying injury and, therefore, any award of summary judgment at this juncture would be premature ( see, Itri Brick Concrete Corp. v. Aetna Cas. Sur. Co., supra, at 795; see also, Haddock v. Fordham Commercial Redevelopment Corp., 247 A.D.2d 327; Zeigler-Bonds v. Structure Tone, 245 A.D.2d 80; cf., Warnitz v. Liro Group, 254 A.D.2d 411).
The parties' remaining contentions are without merit.
Bracken, J. P., O'Brien, Thompson and Friedmann, JJ., concur.