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MARTINEZ v. FIORE

90 A.D.2d 483 (1982)

Jose Martinez et al., Plaintiffs, v. Ernest Fiore et al., Defendants and Third-Party Plaintiffs-Respondents. Remodeling Consultants, Inc., Third-Party Defendant-Appellant

Appellate Division of the Supreme Court of the State of New York, Second Department.

October 4, 1982

Order reversed, with $50 costs and disbursements, and motion for summary judgment denied.

The order granting summary judgment in the third-party action is premature. A claim for indemnity is based on a contract, either express or implied. While a conditional judgment may be entered where indemnification is based upon an express contract to indemnify against loss (see McCabe v Queensboro Farm Prods., 22 N.Y.2d 204; 755...

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