Flower City Insulation Sales & Contractors, Inc. v. Board of Education—Marcus Whitman Central School District

221 A.D.2d 992, 634 N.Y.S.2d 586, 1995 N.Y. App. Div. LEXIS 13490

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1995
• Status: Published

Opinion

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly denied summary judgment to either party on the second cause of action. Questions of fact remain with respect to whether plaintiff is excused from fulfilling the conditions for payment of the retainage under the contract (see, Flower City Insulation Sales & Contrs. v Board of Educ., 190 AD2d 1018,1019). Defendant is, however, entitled to summary judgment dismissing the fifth cause of action. The evidence establishes that defendant received no insurance proceeds pertaining to plaintiff’s losses arising from the fire. The record also establishes that defendant breached its contractual obligation to obtain insurance covering plaintiff’s interest in the work and that plaintiff suffered damage as a result. Plaintiff is, therefore, entitled to summary judgment on the issue of liability on the sixth cause of action and the proposed amendment to that cause of action is not necessary (see, 6 Carmody-Wait 2d, NY Prac § 34:22, at 89). However, plaintiff’s proof is not sufficient for the court to award damages on the sixth cause of action.

We modify the order, therefore, by granting in part plaintiffs motion for summary judgment on the issue of liability on the sixth cause of action and by granting in part defendant’s cross motion for summary judgment dismissing the fifth cause of action, and otherwise affirm. (Appeals from Order of Supreme Court, Ontario County, Henry, Jr., J. —Summary Judgment.) Present—Green, J. P., Pine, Wesley, Callahan and Davis, JJ.