Opinion
April 30, 1991
Appeal from the Supreme Court, New York County (Karla Moskowitz, J.).
Plaintiff, a subcontractor, brings this action to foreclose its mechanic's lien for material and services. Defendant-appellant, the owner of the premises, moved for summary judgment pursuant to CPLR 3212, dismissing the complaint as against it, on the ground that plaintiff failed to meet a condition precedent to recovery on the underlying construction contract, since plaintiff had not installed the exhaust fans specified in the contract. The motion was denied. We agree that issues of fact exist, inter alia, as to whether the parties treated plaintiff's performance of the contract as complete.
Concur — Sullivan, J.P., Rosenberger, Kupferman, Ross and Smith, JJ.