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T.F. Demilo Corp. v. E.K. Constr. Co., Inc.

Appellate Division of the Supreme Court of New York, Second Department
Aug 22, 1994
207 A.D.2d 480 (N.Y. App. Div. 1994)

Opinion

August 22, 1994

Appeal from the Supreme Court, Nassau County (Brucia, J.).


Ordered that the order is modified, on the law, by deleting the provisions thereof which granted the motions of the sureties for summary judgment and the motion of the defendant E.K. Construction Co., Inc., for leave to serve a supplemental pleading, and substituting therefor provisions denying those motions; and as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff payable by the respondents appearing separately and filing separate briefs.

Material issues of fact exist regarding the sureties' obligation to the plaintiff pursuant to the terms of the payment bond, precluding the granting of summary judgment (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320). We further find that the proposed amended answer of the defendant E.K. Construction Co., Inc., which includes a counterclaim for specific performance, is lacking in merit, and leave to amend should not have been granted (see, CPLR 3025 [b]). Specific performance is not available as a remedy for breach of contract where, as here, there is an adequate remedy at law (i.e., money damages) (see, Muller v Muller, 266 N.Y. 68; 96 N.Y. Jur 2d, Specific Performance, § 8).

We have reviewed the plaintiff's remaining contentions and find them to be without merit. Lawrence, J.P., Altman, Friedmann and Krausman, JJ., concur.


Summaries of

T.F. Demilo Corp. v. E.K. Constr. Co., Inc.

Appellate Division of the Supreme Court of New York, Second Department
Aug 22, 1994
207 A.D.2d 480 (N.Y. App. Div. 1994)
Case details for

T.F. Demilo Corp. v. E.K. Constr. Co., Inc.

Case Details

Full title:T.F. DEMILO CORPORATION, Appellant, v. E.K. CONSTRUCTION CO., INC., et…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Aug 22, 1994

Citations

207 A.D.2d 480 (N.Y. App. Div. 1994)
616 N.Y.S.2d 240

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