PEG Bandwidth, LLC v Optical Communications Group, Inc.

PEG Bandwidth, LLC v Optical Communications Group, Inc. 2020 NY Slip Op 01284 Decided on February 25, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 25, 2020
Friedman, J.P., Richter, Webber, Singh, JJ.
154391/15 11104A 11104

[*1] PEG Bandwidth, LLC, Plaintiff-Respondent,

v

Optical Communications Group, Inc., Defendant-Appellant.

Cuomo LLC, Mineola (Oscar Michelen of counsel), for appellant.

Eckert Seamans Cherin & Mellott, LLC, White Plains (Thomas M. Smith of counsel), for respondent.

Judgment, Supreme Court, New York County (Saliann Scarpulla, J.), entered July 9, 2018, in favor of plaintiff and against defendant, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about June 5, 2018, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

As the trial court found, the parties entered into the governing Master Services Agreement (MSA) in October 2013, and, by October 2014, defendant was hopelessly in breach, having failed to render any meaningful performance. As provided for in the agreement, plaintiff terminated the agreement on the ground of material default. When the parties met in December 2014, defendant admitted that, even at that late date, it still needed at least 90 to 150 days to finish the work.

A fair interpretation of the evidence supports Supreme Court's finding that the MSA was properly terminated for convenience.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 25, 2020

CLERK