
    Rhoda Williams et al., Plaintiffs, v 461 Eighth Avenue Associates et al., Appellants, and Millar Elevator Industries et al., Respondents.
    [716 NYS2d 656]
   —Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered April 4, 2000, and order, same court (Barry Salman, J.), entered on or about April 26, 2000, which denied defendant 461 Eighth Avenue Associates’s motion for conditional summary judgment on its cross claims against co-defendants Millar Elevator Industries, Electra Cleaning Contractors and Wallace Hart, unanimously affirmed, without costs.

461 Eighth Avenue Associates’s motion for conditional summary judgment on its cross claim against defendant Millar Elevator Industries for contractual indemnification was properly denied since a material issue of fact exists concerning whether the contract 461 relies upon was in effect on the date of the plaintiffs accident. This issue was not resolved by the conclusory statement contained in the affidavit submitted by 461 that the contract dated November 23, 1994 was in full force and effect, since documentary evidence submitted by Millar suggests a contrary state of affairs. In addition, 461 was not entitled to conditional summary judgment on its cross claim against defendant Electra and its employee defendant Hart for contractual indemnification and breach of an agreement to procure insurance naming 461 as an additional insured since issues of fact exist as to whether Hart was negligent, and if so, whether his actions fell within the scope of the parties’ contract. Moreover, 461 failed to substantiate its claim that Electra breached the parties’ agreement by not procuring liability insurance naming 461 as an additional insured. Concur — Williams, J. P., Tom, Mazzarelli, Rubin and Saxe, JJ.  