Tri-Delta Aggregates, Inc. v. Chautauqua County , 656 N.Y.S.2d 992 ( 1997 )

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: As third-party plaintiff, Chautauqua County (County), concedes on appeal, Supreme Court erred in denying that part of the motion of third-party defendant, URS Consultants, Inc. (URS), for summary judgment dismissing the County’s fifth cause of action seeking contribution for any economic loss sustained by plaintiff, Tri-Delta Aggregates, Inc. (Tri-Delta), resulting from the alleged breach by the County of its contract with Tri-Delta (see, Board of Educ. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21; Tempforce, Inc. v Municipal Hous. Auth., 222 AD2d 778, lv denied 87 NY2d 811; Cappelletti v Unigard Ins. Co., 222 AD2d 1029).

The court properly denied, however, that part of URS’s motion for summary judgment dismissing the County’s causes of action against URS for contractual indemnification and breach of contract. The issue on a motion for summary judgment "is not whether [the movant] can ultimately establish liability, but, rather, whether there exists a substantial issue of fact * * * on the issue of liability which requires a plenary trial” (Barr v County of Albany, 50 NY2d 247, 254). Here, the County has raised triable issues of fact regarding the scope of the duties of URS under its contract with the County and whether URS breached those duties (see generally, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065).

We therefore modify the order by granting in part the motion of URS for summary judgment and dismissing the County’s fifth cause of action and otherwise affirm. (Appeal from Order of Supreme Court, Chautauqua County, Cass, Jr., J.—Summary Judgment.) Present—Denman, P. J., Green, Pine, Balio and Boehm, JJ.