Opinion
April 26, 1999
Appeal from the Supreme Court, Orange County (Slobod, J.).
Ordered that the order dated March 23, 1998, is reversed insofar as appealed from, on the law, and that branch of the respondents' motion which was for summary judgment limiting the plaintiff's damages on its first, second, third, fourth, and fifth causes of action is denied; and it is further,
Ordered that the appeal from the order dated July 29, 1998, is dismissed as academic; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
The respondents failed to establish their prima facie entitlement to summary judgment as a matter of law. The submission of evidence regarding only costs incurred by the plaintiff, ignores the breach of contract cause of action asserted by the plaintiff in the complaint. An issue of fact exists as to whether the plaintiff breached the contract by abandoning the project or whether the respondent Triangle Mechanical and Electrical Co., Inc., breached the contract by failing to pay the plaintiff as required by the contract.
Accordingly, the Supreme Court erred in granting the respondents' motion for summary judgment.
Mangano, P. J., H. Miller, Feuerstein, Schmidt and Smith, JJ., concur.