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Supreme Court, Appellate Division, Fourth Department, New York.

BAILLIE LUMBER CO., L.P., Plaintiff-Respondent, v. A.L. BURKE, INC., Defendant-Respondent-Appellant,

Robertson-CECO Corporation and Star Building Systems, Individually and/or as a Division of Robertson-CECO Corporation, Defendants-Appellants-Respondents. A.L. Burke, Inc., Third-Party Plaintiff-Appellant-Respondent, v. Mucher Erectors, Inc., Third-Party Defendant-Respondent-Appellant.

Decided: September 28, 2007

PRESENT:  SCUDDER, P.J., MARTOCHE, CENTRA, GREEN, AND PINE, JJ. Friedman, Hirschen & Miller, LLP, Albany (Carolyn B. George of Counsel), for Defendant-Respondent-Appellant and Third-Party Plaintiff-Appellant-Respondent. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, McLean, Virginia (William G. Gandy of Counsel), for Defendants-Appellants-Respondents. Goldberg Segalla LLP, Buffalo (Dennis P. Glascott of Counsel), for Third-Party Defendant-Respondent-Appellant. Hodgson Russ LLP, Buffalo (Benjamin M. Zuffranieri, Jr., of Counsel), for Plaintiff-Respondent.

Supreme Court properly denied the motion of defendants Robertson-CECO Corporation (Robertson-CECO) and Star Building Systems, individually and/or as a Division of Robertson-CECO Corporation (Star), for summary judgment dismissing the breach of express warranty cause of action and the cross claim against them.   Robertson-CECO and Star contend that they are not liable under the express warranty because it applies only to the metal roof panels, and plaintiff has not alleged that any damages arose from those panels or the materials used to manufacture them.   We reject that contention.   As the court properly concluded, it cannot be discerned from the record what caused the roof to leak, and thus there is an issue of fact whether the structural failure of the roof panels was a proximate cause of plaintiff's damages or whether plaintiff's damages resulted from a part of the building not covered by the express warranty (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

The court also properly denied those parts of the motion of defendant-third-party plaintiff, A.L. Burke, Inc. (Burke), for a conditional order of common-law and contractual indemnification against Robertson-CECO and Star and/or against third-party defendant, Mucher Erectors, Inc. (Mucher).  In addition, the court properly granted that part of Mucher's cross motion for summary judgment seeking dismissal of Burke's contractual indemnification claim.   There is an issue of fact whether Burke was negligent, thus rendering Burke's motion premature with respect to common-law indemnification against Robertson-CECO, Star and Mucher (see Scally v. Regional Indus. Partnership, 9 A.D.3d 865, 868, 780 N.Y.S.2d 457), and with respect to contractual indemnification against Robertson-CECO and Star (see State of New York v. Travelers Prop. Cas. Ins. Co., 280 A.D.2d 756, 757-758, 720 N.Y.S.2d 589;  see also Northland Assoc. v. Joseph Baldwin Constr. Co. [Appeal No. 2], 6 A.D.3d 1214, 1216, 776 N.Y.S.2d 663).   With respect to contractual indemnification against Mucher, however, the unrefuted evidence establishes that Mucher erected the building using Star's instruction manual and did nothing to cause the roof to leak.

It is hereby ORDERED that the amended order so appealed from be and the same hereby is unanimously affirmed without costs.