Order modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in denying the motions of third-party defendants City of Rochester (City) and Empire Soils Investigations, Inc. (Empire Soils) for summary judgment dismissing the claims of third-party plaintiff Concrete Materials, Inc. (CMI) against them for contribution and/or indemnification. We conclude as a matter of law that CMI does not have a valid claim for contribution or indemnity against either the City or Empire Soils.
The main action seeks to recover damages for economic loss resulting from a breach of a contract to reconstruct portions of a City street. CPLR 1401 provides that two or more persons who are subject to liability for damages for the same "injury to property” may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought. Purely economic loss resulting from a breach of contract does not constitute "injury to property” within the meaning of the contribution statute (Board of Educ. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21, 26-29). We reject CMI’s attempts to transform what is clearly a breach of contract claim into a tort claim (see, Bellevue S. Assocs. v HRH Constr. Corp., 78 NY2d 282, 293-295; Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382, 389-390; see also, Sommer v Federal Signal Corp., 79 NY2d 540, 552).
A cause of action for indemnification must be based upon a contract, either express or implied (see, McFall v Compagnie Maritime Beige [Lloyd Royal], 304 NY 314, 328; Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 125 AD2d *1025754, 756, affd 71 NY2d 599). There is no express contract between CMI and either the City or Empire Soils and there is no valid common-law theory of implied warranty on the facts of this case. CMI, which supplied the defective asphalt, actually participated in the wrongdoing and cannot recover on the theory of implied indemnification (see, County of Westchester v Becket Assocs., 102 AD2d 34, 46-48, affd 66 NY2d 642; First Bible Baptist Church v Gates-Chili Cent. School Dist., 172 AD2d 1057, 1058; Crow Constr. Co. v Quickway Metal Fabricators, 155 AD2d 295, 296; Trustees of Columbia Univ. v Mitchell/Giurgola Assocs., 109 AD2d 449, 453-454).
Supreme Court, however, properly denied the City’s motion to dismiss plaintiffs breach of contract claim. Paragraphs 9.3.1 and 11.3.5 of the agreement cannot be read together in a manner which, as a matter of law, precludes plaintiffs breach of contract claim. Although paragraph 11.3.5 provides that the City’s independent testing will not relieve the contractor of its obligation to perform the work in accordance with the contract documents, the provisions of paragraph 9.3.1 raise a triable issue concerning what those obligations were and, also, whether defendant City breached its obligations under the agreement (see, Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169, 172). Unlike the factual circumstance in Hartford Acc. & Indem. Co. v Wesolowski (supra, at 172), however, the parties in the instant matter do not agree that there was no extrinsic evidence bearing upon the intent of the parties. Plaintiffs President testified at an examination before trial that, based upon past practices on City projects, the City would stop production of materials which did not satisfy the contract specifications. Because extrinsic evidence of past practices and custom was raised, factual issues exist which preclude summary judgment.
All concur, except Boomer and Doerr, JJ., who dissent in part in the following Memorandum.