We further conclude that this action is not barred by res judicata: Although plaintiff asserted a cross claim for contractual indemnification against defendant in a prior action, that claim was not submitted to the jury or ruled upon by the court ( see, Savage v. Specialty Retail Concepts [appeal No. 6], 179 A.D.2d 1059). The judgment in this action does not destroy or impair rights or interests established by the judgment in the prior action ( see, Schuykill Fuel Corp. v. Nieberg Realty Corp., 250 N.Y. 304, 306-307). Because the court properly granted summary judgment to plaintiff on the first cause of action, we need not reach defendant's remaining contention that the second cause of action is untimely. (Appeal from Order of Supreme Court, Onondaga County, Tormey, III, J. — Summary Judgment.)