Appellate Division of the Supreme Court of New York, 1991

Avaho Industries, Inc. v. Le Sannom Building Corp.

Avaho Industries, Inc. v. Le Sannom Building Corp.
Appellate Division of the Supreme Court of New York · Decided April 30, 1991
172 A.D.2d 468
Avaho Industries, Inc. v. Le Sannom Building Corp.

Opinion of the Court

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered November 1, 1990, which, inter alia, denied defendant-appellant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff, a subcontractor, brings this action to foreclose its mechanic’s lien for material and services. Defendant-appellant, the owner of the premises, moved for summary judgment pursuant to CPLR 3212, dismissing the complaint as against it, on the ground that plaintiff failed to meet a condition precedent to recovery on the underlying construction contract, since plaintiff had not installed the exhaust fans specified in *469the contract. The motion was denied. We agree that issues of fact exist, inter alia, as to whether the parties treated plaintiffs performance of the contract as complete. Concur—Sullivan, J. P., Rosenberger, Kupferman, Ross and Smith, JJ.

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