Opinion
CA 01-01171
February 1, 2002.
Appeal from an order of Supreme Court, Niagara County (Lane, J.), entered November 3, 2000, which granted defendants' motion for summary judgment.
LAW OFFICES OF JOHN P. BARTOLOMEI ASSOCIATES, NIAGARA FALLS (JOHN P. BARTOLOMEI OF COUNSEL), FOR PLAINTIFF-APPELLANT.
SIEGEL, KELLEHER KAHN, BUFFALO (STEVEN G. WISEMAN OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: PINE, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.
Memorandum:
Supreme Court erred in granting defendants' motion seeking summary judgment dismissing the complaint. In support of their motion, defendants asserted that they substantially performed their obligations under the contract at issue. Defendants failed, however, to establish that their failure to comply fully with the terms of the contract was "inadvertent or unintentional" or that "the defects [in their performance] were insubstantial" ( Sear-Brown Assocs. v. Blackwatch Dev. Corp., 112 A.D.2d 765; see, Hadden v. Consolidated Edison Co. of N. Y., 34 N.Y.2d 88, 97, n 9) and thus failed to establish their entitlement to judgment as a matter of law ( see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562).