(dissenting). I respectfully dissent. CPLR 1401 is the statutory basis for contribution claims. The statutory language does not elucidate the types of actions in which contribution is available. The legislative history of CPLR 1401 is less than clear. An argument for either position on this appeal may be made out in the legislative statements attendant to its passage.
It seems appropriate, under the circumstances, to turn instead to judicial interpretations of CPLR 1401 for assistance in resolving the issues herein. With Dole v Dow Chem. Co. (30 NY2d 143), comparative negligence has undergone a relatively *32liberal construction in case law (see, Lippes v Atlantic Bank, 69 AD2d 127). Contribution has also undergone changes. In Schauer v Joyce (54 NY2d 1), it was held that the viability of a contribution claim was to be judged, not by whether the third-party defendant owed a duty to the defendant, but by whether each owed a duty to the plaintiff and, by breaching their respective duties, whether the parties contributed to the plaintiffs ultimate injuries. These requirements were reiterated in Crow-Crimmins-Wolff & Munier v County of Westchester (90 AD2d 785), where a contractor against whom the county asserted a counterclaim for breach of a contract to construct a sewage treatment plant was permitted to maintain a third-party action against the county’s consulting engineers for indemnification and/or contribution. The Second Department held that privity of contract between the parties to the third-party action was not necessary (see, Haseley Trucking Co. v Great Lakes Pipe Co., 101 AD2d 1019; Taft v Shaffer Trucking, 52 AD2d 255, appeal dismissed 42 NY2d 974). In addition, this court in State Univ. Constr. Fund v United Technology Corp. (78 AD2d 748) allowed an architect, who was sued by the plaintiff for breach of contract, negligence and malpractice in the construction of a chilled water system, to commence a third-party action against the manufacturers of materials used in the system even when the plaintiffs cause of action against them for breach of warranty was statutorily barred.
In causes of action for contribution, the emphasis has been on whether the parties involved in the third-party action contributed to the same injury rather than the particular theories of law sued upon (see, Samaritan Hosp. v McManus, Longe, Brockwehl, 92 AD2d 957; Nassau Roofing & Sheet Metal Co. v Celotex Corp., 74 AD2d 679; North Colonie Cent. School Dist. v MacFarland Constr. Co., 60 AD2d 685). In view of the foregoing, I conclude that the third-party claim for contribution was properly interposed in this action and that the motion of third-party defendant Thompson Construction Corporation (Thompson) for dismissal was properly denied.
Thompson also challenges the third-party claim for indemnification on the ground that it is without merit absent an express indemnification agreement between the parties and on the separate ground that it is applicable only in situations involving tortious activity. Thompson’s first assertion fails in light of the holding in McDermott v City of New York (50 NY2d 211), where the Court of Appeals held that indemnification could be implied where warranted by equitable circum*33stances. The Court of Appeals also held that indemnification is not restricted to tort actions (supra, at p 218, n 4). The order of Special Term should therefore be affirmed.
Mahoney, P. J., Casey and Yesawich, Jr., JJ., concur with Levine, J.; Mikoll, J., dissents and votes to affirm in an opinion.
Order reversed, on the law, without costs, motion granted and third-party complaint dismissed against third-party defendant Thompson Construction Corporation, with leave to re-plead so much thereof as asserts a cause of action for indemnification within 20 days after service of a copy of the order to be entered upon this decision with notice of entry.