Opinion
December 11, 1995
Appeal from the Supreme Court, Nassau County (O'Connell, J.).
Ordered that the order entered April 12, 1994, is affirmed insofar as appealed from; and it is further,
Ordered that the order entered December 30, 1994, is affirmed; and it is further,
Ordered that the defendant is awarded one bill of costs.
We agree with the Supreme Court that the plaintiff failed to establish her entitlement to judgment as a matter of law. Specifically, there are questions of fact regarding whether the terms of the agreement accompanying the promissory note in question constituted a condition precedent to payment (see, Ruttenberg v Davidge Data Sys. Corp., 215 A.D.2d 191; Toys "R" Us — NYTEX v Rosenshein Dev. Corp., 172 A.D.2d 826, 827), and, even if we assume that the terms were a condition precedent, whether the defendant had proceeded diligently and used its best efforts to fulfill the terms (see, Kroboth v Brent, 215 A.D.2d 813; Lindenbaum v Royco Prop. Corp., 165 A.D.2d 254, 260; Norgate Homes v Central State Bank, 82 A.D.2d 849, 850).
The plaintiff's other contentions are without merit. Miller, J.P., O'Brien, Pizzuto and Krausman, JJ., concur.