Mohawk International, Inc., Respondent, v. Albert A. Zangrilli et al., Respondents, and H. J. Brandeles Corp., Appellant

Mohawk International, Inc., Respondent, v Albert A. Zangrilli et al., Respondents, and H. J. Brandeles Corp., Appellant. [MAJORITY] Order unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying the motion of H. J. Brandeles Corporation (Brandeles) for summary judgment dismissing the complaint and cross claims asserted against it. Brandeles demonstrated its entitlement to judgment in its favor as a matter of law. Brandeles’ treasurer, Louis Falvo, averred in an affidavit in support of the motion that he was familiar with the contract entered into between Brandeles and plaintiff; that the contract imposed no duty on Brandeles to review or approve the plans and specifications; and that the contract obligated Brandeles only to install the heating system in accordance with those plans and specifications. Thereafter, plaintiff paid Brandeles in full for the installation of the heating system. Plaintiff failed to tender evidentiary proof in admissible form sufficient to show the existence of a triable issue of fact or "to demonstrate acceptable excuse for [its] failure to meet the strict requirement of tender in admissible form” (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068). Further, our conclusion that Brandeles is not liable to plaintiff necessarily defeats the cross claims for contribution asserted against Brandeles by the other defendants (see, Stone v Williams, 64 NY2d 639, 642) and, accordingly, those cross claims must be dismissed. (Appeal from order of Supreme Court, Oneida County, Parker, J.—summary judgment.) Present— Callahan, J. P., Doerr, Boomer, Green and Davis, JJ.