Isacowitz v Halpern Constr., Inc.

Isacowitz v Halpern Constr., Inc. 2010 NY Slip Op 04239 [73 AD3d 565] May 18, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 30, 2010

Alvin Isacowitz, Doing Business as Excellence in Plumbing, Appellant,
v
Halpern Construction, Inc., et al., Respondents, et al., Defendants.

—[*1] Robert Teitelbaum & Associates, P.C., Brooklyn (Robert Teitelbaum of counsel), for appellant.

Herrick, Feinstein, LLP, New York (William R. Fried of counsel), for respondents.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered January 29, 2009, which denied plaintiff's motion for summary judgment on its claims for payment against defendants Halpern Construction, Inc. and General Accident Insurance Company of America and dismissing said defendants' counterclaims and affirmative defenses, unanimously affirmed, without costs.

Summary judgment is precluded by triable issues of fact including whether plaintiff breached its contracts with the construction manager by failing to pay its material suppliers; whether plaintiff failed to perform its contracts in accordance with their time-of-the-essence provisions; whether the construction manager properly terminated plaintiff for untimely performance; and whether the construction manager's noncompliance with the agreements' three-day notice to cure requirement was excusable on the ground of plaintiff's alleged abandonment of the project. Concur—Tom, J.P., McGuire, Acosta and Freedman, JJ. [Prior Case History: 2009 NY Slip Op 30180(U).]