Randall Benderson 1993-1 Trust v. West-Herr Ford, Inc.

275 A.D.2d 907, 715 N.Y.S.2d 172, 2000 N.Y. App. Div. LEXIS 9582

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 29, 2000
• Status: Published

Opinion

—Order unanimously affirmed with costs. Memorandum: Plaintiffs commenced this action seeking specific performance and/or damages for breach of a contract for their sale of commercial property to defendants. Defendants deny any breach, allege in their fourth and fifth affirmative defenses that plaintiffs breached the contract by failing to perform their asbestos-removal obligations thereunder, and by their first and second counterclaims seek to recover their $75,000 deposit. On appeal, plaintiffs contend that Supreme Court erred in denying that part of their motion for summary judgment dismissing defendants’ fourth and fifth affirmative defenses and first and second counterclaims. We disagree. Plaintiffs failed to sustain their initial burden of demonstrating that their removal of the asbestos tile and related asbestos material from the building was carried out “in conformity with all applicable laws, rules and standards” as required by the contract. In any event, defendants raised triable issues of fact concerning whether plaintiffs complied with their asbestos-removal obligations under the contract, thus precluding summary judgment (see generally, Zuckerman v City of New York, 49 NY2d 557, 562). (Appeal from Order of Supreme Court, Erie County, Sconiers, J. — Summary Judgment.) Present — Green, J. P., Pine, Hurl-butt, Kehoe and Lawton, JJ.