Opinion
June 16, 1986
Appeal from the Supreme Court, Nassau County (Balletta, J.).
Order reversed, on the law, with costs, motion granted, and third-party complaint dismissed.
When no facts establishing a cause of action are alleged or proved, summary judgment may be properly granted to a defendant (Barr v. County of Albany, 50 N.Y.2d 247; Alvord Swift v. Muller Constr. Co., 46 N.Y.2d 276). Although the third-party complaint alleged a present intent not to carry out the promise of future action, the affidavits and supporting papers did not contain any factual assertions from which this conclusion can be drawn, and thus failed to state a cause of action sounding in fraud based on misrepresentation of future intentions (see, Boylan v. Morrow Co., 63 N.Y.2d 616; Lanzi v. Brooks, 54 A.D.2d 1057, affd 43 N.Y.2d 778; Grossberg v. Grossberg, 104 A.D.2d 439, 440).
Summary judgment was also improperly denied on the claim for indemnification. On the facts of this case, either the defendants third-party plaintiffs were actual wrongdoers, barring an indemnification claim on their part (see, e.g., County of Westchester v. Becket Assoc., 102 A.D.2d 34, 47, affd 66 N.Y.2d 642) or they did not defame the plaintiff in the main action, and would, therefore, not be liable to him.
Although the trial court did not reach the question of whether the defendants third-party plaintiffs were entitled to contribution, we conclude that they are not. There was no duty alleged in the defendants third-party plaintiffs' papers that would support the claim for contribution (see, Garrett v. Holiday Inns, 58 N.Y.2d 253; Pulka v. Edelman, 40 N.Y.2d 781). Bracken, J.P., Niehoff, Lawrence and Kunzeman, JJ., concur.